OLD GERMANIC LAW on ABORTION: an Overview1

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Reading between the lines: Old Germanic and early Christian views on abortion

Elsakkers, M.J.

Publication date 2010

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Citation for published version (APA): Elsakkers, M. J. (2010). Reading between the lines: Old Germanic and early Christian views on abortion.

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Chapter 1

OLD GERMANIC LAW ON ABORTION: An Overview1

ROMAN HERITAGE The Germanic tribes that founded kingdoms in the former Roman Empire and in regions to the north and east of the Roman limes brought along their own customs, traditions and laws. They gradually all converted to Christi- anity, and were certainly not immune to Roman culture and society. Germanic kings recognized the significance and the authority of written Roman law, and this prompted them to have law codes of their own drawn up in Latin - the language of literacy. The Old Germanic law codes or leges barbarorum were probably based on age- old laws that had been transmitted orally from generation to generation in the various Germanic vernaculars. However, many of the written codifications were influenced by current Roman law.2 Roman jurists were probably involved in the codification of some of the Old Germanic laws, especially the laws of the tribes that settled in the southern parts of western Europe, the heart of the former Roman Empire (Leges Visigothorum, Lex Burgundionum, the Ostrogothic Edictum Theoderici, and the somewhat younger Leges Langobardorum). The Visigothic and Burgundian kings also had their lawyers compile separate compendia of Roman law or leges ro- manae (Lex Romana Visigothorum or Breviarium Alarici and the Lex Romana Burgundionum) for their Italo-, Hispano- and Gallo-Roman subjects.3 In other Germanic kingdoms the Breviarium Alarici (506) and/or the Codex Theodosianus (438) were used as compendia of Roman law.4 Roman law does not prohibit abortion; it condemns poisoning and endangering another person’s life.5 Roman and Jewish law both regard the fetus as a part of the mother’s body, pars viscerum matris.6 In Roman law the fetus is not a person or a separate human being that can be murdered or avenged. Only killing or injuring the mother is punished. The Roman law on poisoning, the Lex Cornelia de Sicariis et Veneficis (LCSV), forbids selling, supplying, preparing and possessing poison. The Breviarium Alarici (BA) contains the late Roman jurist Paul’s commentary on the LCSV.

1 Many thanks are due to Erika Langbroek, Bert Okken, Sandor Chardonnens, Rolf Bremmer, Liduine Smit-Verheij, Bertine Bouwman, Marjon Deegens, Fabiola van Dam, Aad Quak, Thea van der Linden, and Han Nijdam for help in various ways. 2 For a short overview of Old Germanic law, see: Elsakkers 2006. On the history of late antiquity, the influence of Roman law on the ‘barbarian’ codes, and (the history of) late antique and early medieval Germanic law, see, for instance: Vino- gradoff 1929, Levy 1951, Levy 1951a, Schott 1979, James 1982, 1988, Niederhellmann 1983, Wood 1986, 1990, 1993, 1994, 1998, Drew 1988, Geary 1988, Wolfram & Pohl 1990, Reuter 1991, Schmidt-Wiegand 1991, Cameron 1993, Harries & Wood 1993, Matthews 1993, 2000, 2006, Harries 1993, Wolfram 1997, Wormald 1999a, Wormald 1999, Charles- Edwards 2000, Wickham 2005, Smith 2005, and the articles on Old Germanic law in the Handwörterbuch zur deutschen Rechtsgeschichte (HRG). The Monumenta editions of the Old Germanic laws are available on the internet thanks to the courtesy of the MGH and the Bayerische Staatsbibliothek: http://bsbdmgh.bsb.lrzmuenchen.de/dmgh_new/ (last accessed December 5, 2009). 3 For an edition of the Breviarium Alarici cf. Haenel 1849; for the Lex Romana Burgundionum, see below. 4 For an edition of the Codex Theodosianus (CTh), cf. Mommsen 1904, Pharr 1952 (English translation), and http://www.- thelatinlibrary.com/theodosius.html (last accessed December 5, 2009). See also: Matthews 2000, Harries & Wood 1993, and especially Sirks 1993 and Wood 1993. 5 On Roman law, abortion and the fetus, cf. appendix 1. 6 On Jewish law, cf. Mendelsohn 1891, Feldman 1968, pp. 251-268, Jakobovits 1975, pp. 190-191, Rosner 1976, p. 218, and Silber 1980, p. 236. In Jewish law the fetus is considered ‘potential life’. “The special set of laws governing the abortion question begins with an examination of the foetus’s legal status. For this the Talmud has a phrase, ubar yerekh imo, which is a counterpart of the Latin pars viscerum matris. The foetus, that is, is to be deemed a ‘part of its mother’ rather than an independent entity” (Feldman 1968, p. 253). On the Old Testament law on abortion and the Hebrew and Septuagint version of Exodus 21: 22-23, cf. Te Lindert 1998 and Elsakkers 2005. [article III]. Part 2: Chapter 1 330

Pauli Sententiae PS 5.23.1 (BA PS 5.25.1) Lex Cornelia poenam deportationis infligit ei, qui hominem occiderit eiusve rei causa furtive faciendi cum telo fuerit et qui venenum hominis necandi causa habuerit, vendiderit, paraverit, falsum testimonium dixerit, quo quis periret, mortisve causam praestiterit. Ob quae omnia facinora in honestiores poena capitis vindicari placuit, humiliores vero aut in crucem tolluntur aut bestiis obiciuntur.7

According to the Pauli Sententiae the poisons that are forbidden in the LCSV include abortifacients and aphrodisiacs: Pauli Sententiae PS 5.23.14 (BA PS 5.25.8). Qui abortionis aut amatorium poculum dant, etsi id dolo non faciant, tamen, quia mali exempli res est, humiliores in metallum, honestiores in insulam amissa parte bonorum relegantur; quod si ex hoc mulier aut homo perierit, summo supplicio afficiuntur.8

Roman law forbids giving someone an abortifacient or a love potion, because these concoctions were known to be poisonous and potentially lethal.9 The punishment for poisoners, including those who provide others with abortifacients or aphrodisiacs, is severe - even when no harm was meant or when done in good faith: it entails forfeit of property, banishment to an island or deportation to the mines.10 If the person who is poisoned dies, the punishment is death. Abortion in itself is not punished, nor is the death of the fetus treated as murder. It is poisoning and jeopardizing another person’s life that is punished. The LCSV influenced the early medieval legis- lators who compiled the Germanic law codes through the Codex Theodosianus and the Breviarium Alarici (506), both of which were well-known and influential throughout the Middle Ages.11 We must not forget that Roman law did not suddenly become obsolete, when the Germanic tribes began putting down their roots down in Western Europe. Written and unwritten Roman law and Roman vulgar law remained in force as the law of the Romans living under Germanic rule, as did provincial law and (oral) customary law, so that many different laws were current in the early medieval West, besides the ‘new’ barbarian laws. Although Germanic law is usually defined as ‘personal law’, it is well to remember that it was not always easy to define a person’s ethnicity.12 This and the abundance of laws could lead to awkward situations, as noted by Agobard (769-840) in his Adversus legem Gundobadi: It often happens that five men are travelling or sitting together, and none of them shares a common law with the others in transitory matters as regards things of the body, although all are bound together with regard to the soul in matters that are eternal, by the one law of Christ. And it may be that all are true christians, loving the truth of the faith, and believing themselves to be the dearest of friends, and none rejects the testimony of any other while they edify each other with good speeches. If it suddenly happens that one of them is involved in a legal dispute, he cannot call a witness from among his

7 Vanzetti 1995, p. 134; Pauli Sententiae, ‘PS 5.23.1 (BA PS 5.25.1) Die Lex Cornelia legt die Strafe der Deportation den- jenigen auf, welche einen Menschen getötet oder dieserhalb, bez. um ein Furtum zu verüben, einer Waffe sich bedient haben werden, und die Gift behufs Beiseiteschaffung eines Menschen gehabt, verkauft, zubereitet, oder ein falsches Zeugnis abge- legt haben werden, damit Jemand zu Grunde gehe, oder die Veranlassung zum Tode eines Menschen gegeben haben werden. Man war dahin einig, dass wegen aller dieser Missethaten gegen Vornehmere mit Kapitalstrafe eingeschritten werde; hingegen werden Personen niederen Standes entweder an das Kreuz geschlagen oder den wilden Tieren vorgeworfen’ (Conrat 1903, p. 531). 8 Vanzetti 1995, p. 136; ‘Paul’s Sentences, PS 5.23.14 (BA PS 5.25.8) Those who give an abortifacient or a love potion, and do not do this deceitfully, nevertheless, [because] this sets a bad example, the humiliores will be banned to a mine, and the honestiores will be banned to an island after having forfeited (part of) their property, and if on account of that a woman or man perishes, then they [Pharr: the giver] will receive the death penalty’ (Pharr 1932, p. 289; emended translation). 9 By implication we can assume that other substances and remedies, such as contraceptives, fertility drugs and menstrual regulators, were also banned, if they were known to be poisonous. Medical treatises, herbaria, and recipe books often indicate that remedies were poisonous; sometimes a remedy for a certain complaint includes a warning that it can cause an abortion a pregnant woman. See also: chapter 4. 10 The LCSV was enacted in order to prevent intentional poisoning. It was common knowledge that poisoning was a favorite method of political murderers in Roman Empire; it was used to eliminate enemies and political adversaries, cf. Rutten 1997. The LCSV also aimed to protect citizens from being poisoned accidentally through injudicious use of poisonous drugs. 11 Cf. Wood 1993 and Matthews 2000. 12 On ‘ethnicity’, see, for instance, Pohl 1997, Pohl & Reimitz 1998 and Wolfram & Pohl 1990. Part 2: Chapter 1 331

dearest friends, with whom he had been out walking, because the testimony of a particular man is not valid against a Gundobadus [Burgundian law], and likewise with the others.13

An important difference between Roman and Germanic law is that the latter does not usually sentence a person to death for murder. Instead, the murdered person’s life must be compensated with the wergeld, that is, the price for a man’s life. Injuries are also compensated with a fine. The fines for injuries are determined by means of injury tariffs, that is, detailed lists of the compensations to be paid to the victim. These tariff lists are characteris- tic of Old Germanic law. In Old Germanic law we find provisions on abortion in the titles on poisoning and magic, and in the titles on injuries and homicide. The former are concerned with intentional abortion, and the latter with violent abortion or abortion by assault.14

VISIGOTHIC LAW ON ABORTION The six Visigothic antiquae leges on abortion in the Leges Visigothorum (LV) were promulgated in the fifth or sixth century, and are probably the oldest set of medieval laws on abortion.15 They discuss abortifacients, intentional abortion and violent abortion. The first article (LV 6.3.1) was probably based on the Roman jurist Paul’s interpretation of the LCSV quoted above (PS 5.23.14 - BA PS 5.25.8), and it is older than the Visigothic law on poisoning that was also derived from Roman law.16 LV 6.3.1. Antiqua. De his, qui potionem ad aborsum dederint. Si quis mulieri pregnanti potionem ad avorsum aut pro necando infante dederit, occidatur; et mulier, que potionem ad aborsum facere quesibit, si ancilla est, CC flagella suscipiat; si ingenua est, careat dignitate persone et cui iusserimus servitura tradatur.17

LV 6.3.1 punishes suppliers of abortifacient potions with the death penalty, whether or not the person who took the abortifacient died, a punishment that is much harsher than its source. At first sight LV 6.3.1 is a prohibition

13 Wood 1990, p. 53; for the Latin text, see: CLCLT: Agobardus Lugdunensis, Aduersus legem Gundobadi, cap. : 4, linea : 11-15 (CCCM 52) (Cetedoc last accessed January 17, 2010). See also: Wood 1990, passim and Wood 1986, pp. 20-21. 14 Note that Roman law does not explicitly punish violent or involuntary abortion. Aggression or violence that caused a woman to abortion could be punished under the laws on injuries and homicide. 15 The Leges Visigothorum were edited by Zeumer in 1902; cf. also: http://bsbdmgh.bsb.lrz-muenchen.de/dmgh_new/ (last accessed December 5, 2009). The seven Visigothic laws on abortion are in title three De executientibus hominum partum, ‘concerning abortion’, of book six De sceleribus et tormentis, ‘concerning crimes and tortures’. The antiquae leges are ‘old laws’ promulgated by the Visigothic kings Euric (466-484), Alaric II (484-507), Leovigild (568-586) and Reccared I (586- 601), or the Ostrogothic king Theoderic (493-526); the younger laws usually mention the king that issued the law. Six of the Visigothic abortion laws are antiquae; the seventh was issued by king Chindasvinth (642-653). Only a few fragments of private law from the fifth-century Codex Euricianus (CE), a code probably promulgated under the Visigothic king Euric in 475, survive in the palimpsest MS Paris. Lat. 12161 (De Commendatis vel Commodatis, De Vendi- tionibus, De Donationibus, De Successionibus), cf. d’Ors 1960, Zeumer 1902, pp. 1-27, and http://bsbdmgh.bsb.lrz- muenchen.de/dmgh_new/ (last accessed December 5, 2009). Zeumer construed a reconstruction of Eurician law using younger Bavarian law (Zeumer 1902, pp. 28-32). His abortion law (CE 3) is a reconstruction based on LV 6.3.1 plus LV 6.3.2 (CE 3, Zeumer 1902, p. 29). Because we have no way of knowing if Euric ever issued a law on abortion, Zeumer’s reconstruction is best ignored. On Visigothic law and Visigothic society, see, for instance: Thompson 1966, 1969, King 1972, 1980a, 1980b, Nehlsen 1978c, James 1980, Collins 1983, Wolfram 1988, 1990, Heather & Matthews 1991, Heather 1991, 1992, 1996, 1998, 1999, Nixon 1992 and Ferreira 1999. On Visigothic abortion law, cf. Amundsen 1971, Niederhellmann 1983, Elsakkers 2003a and Elsakkers 2005. [articles II and III] 16 A separate law on poisoning that was clearly based on the LCSV was issued in the seventh century during king Chinda- svind’s reign: LV 6.2.2 (6.2.3). The laws on poisoning are in the preceding title of the same book 6: 6.2. De maleficis et con- sulentibus eos adque veneficis, ‘6.2. Concerning malefactors and their advisors, and poisoners’. If the poisoner’s (veneficus) victim dies after drinking the poisonous potion (venenatam potionem), the poisoner must be tortured and then put to death. If the victum lives, the poisoner must be ‘given up into his power, to be disposed of absolutely as he may desire’. 17 Zeumer 1902, p. 260; ‘LV 6.3.1. Old law. Concerning those who give a potion to induce abortion. If anyone gives a potion to a pregnant woman for abortion or for the purpose of killing a[n unborn] child, let this person be put to death; and let the woman who asked [this person] for a potion to commit abortion (or: asked [this person] to concoct a potion for abortion), if she is a slave, receive 200 lashes; if she is a free woman, let her be deprived of the dignity of a persona and be handed over as a slave to whom we order’ (Amundsen 1971, p. 567; slightly emended translation). Part 2: Chapter 1 332

of poison like the LCSV, but, if we look closer, we see that the Visigothic lawgiver added a provision that punishes the woman who is contemplating deliberate abortion. A free woman who asks for an abortifacient potion is punished with loss of freedom or enslavement, and an ancilla, slave woman, who does the same, should receive 200 lashes. The following five Visigothic antiquae on abortion (LV 6.3.2 - 6.3.6) condemn violent abortion, that is, involuntary abortion brought on by a third party.18 LV 6.3.2. Antiqua. Si ingenuus ingenuam abortare fecerit. Si quis mulierem gravidam percusserit quocumque hictu aut per aliquam occasionem mulierem ingenuam abortare fecerit, et exinde mortua fuerit, pro homicidio puniatur. Si autem tantumodo partus excutiatur, et mulier in nullo debilitata fuerit, et ingenuus ingenue hoc intulisse cognoscitur, si formatum infantem extincxit, CL solidos reddat; si vero informem, C solidos pro facto restituat.19

LV 6.3.2 - LV 6.3.6 explain that causing a spontaneous miscarriage in a woman was considered an act of violence, whatever the circumstances or the method used. If read together, these five Visigothic articles on violent abortion offer a comprehensive list of all possible contingencies, and of the fines due in each case.20 If the pregnant woman dies, the guilty party is punished for homicide. Visigothic abortion law is innovative in that it differentiates the punishment for violent abortion according to the stage of development of the fetus. Early term abortion is a less serious offense than late term abortion. The penalty for the former is 100 solidi; for the latter 150 solidi must be paid. Both sums are fines for serious injuries to the pregnant woman.21 In Visigothic law the Aristotelian criterion ‘formed’ - ‘unformed’ is used to distinguish between early term and late term abortion. This criterion was introduced into medieval secular law by the lawyers who incorporated the Greek Septuagint-based version of the biblical law on abortion into Visigothic law. Note, however, that these Visigothic laws punish violent abortion (percusserit quocumque hictu), including domestic violence, and that the biblical law deals with accidental abortion (‘If two men fight and strike a woman who is pregnant …’).22 The Visigothic choice of the Septuagint-based version of Exodus 21: 22-23 and not the Hebrew version seems logical, because the Greek Septuagint was probably the Bible version used for the Gothic translation of the Bible.23 Later in the seventh century, the tide in Visigothic Spain seems to have changed. King Chindasvind (642-653) issued the new law on abortion (LV 6.3.7) that is harsh and uncompromising in its condemnation of voluntary and by implication also involuntary abortion as murder. It punishes abortion with the death penalty or blinding - both are ‘Roman’ and not ‘Germanic’ forms of punishment. LV 6.3.7. Flavius Chindasvindus Rex. De his, qui filios suos aut natos aut in utero necant. Nihil est eorum pravitate deterius, qui, pietatis inmemores, filiorum suorum necatores existunt. Quorum quia vitium per provincias regni nostri sic inolevisse narratur, ut tam viri quam femine sceleris huius auctores esse repperiantur, ideo

18 Zeumer 1902, pp. 261-262. 19 Zeumer 1902, p. 261; ‘LV 6.3.2. Old law. If a free man causes a free woman to abort. If anyone strikes a pregnant woman by any blow whatever or through any circumstance causes a free woman to abort, and from this she dies, let him be punished for homicide. If, however, only the partus is expelled, and the woman is in no way debilitated, and a free man is recognized as having inflicted this to a free woman, if he has killed a formed fetus, let him pay 150 solidi; if it is actually an unformed fetus, let him pay 100 solidi in restitution for the deed’ (Amundsen 1971, p. 567; slightly emended translation). 20 For a discussion of LV 6.3.2 - LV 6.3.6, see: Elsakkers 2003a. The careful structure of these laws and the discussion of each contingency seem to be reminiscent of Roman law. [article II] 21 The fines for killing a formed and an unformed fetus are comparable to the fines imposed for amputation and causing a person to become seriously disabled. Cutting off a hand or a foot is fined with 100 solidi, cf. the injury tariffs in Book 6, title 4, especially LV 6.4.1 and LV 6.4.3, cf. Elsakkers 2003a, p. 61, note 20. [article II] Wergeld is not mentioned explicitly in Visigothic law; one of Reccesvinth’s laws states that the compensation due for homicide is 500 solidi (LV 6.5.14). However, other laws demand the death penalty for homicide (see, for instance, LV 6.5.12). See also: Elsakkers 2003a, p. 57, note 7. [article II] 22 Cf. chapter 2. 23 See: Elsakkers 2005. [article III]. Part 2: Chapter 1 333

hanc licentiam proibentes decernimus, ut, seu libera seu ancilla natum filium filiamve necaverit, sive adhuc in utero habens, aut potionem ad avorsum acceperit, aut alio quocumque modo extinguere partum suum presumserit, mox pro- vincie iudex aut territorii talem factum reppererit, non solum operatricem criminis huius publica morte condemnet, aut si vite reservare voluerit, omnem visionem oculorum eius non moretur extinguere, sed etiam si maritum eius talia iussisse vel permisisse patuerit, eundem etiam vindicte simili subdere non recuset.24

This law betrays clerical influence, because it reads like a vehement sermon. Perhaps it was influenced by the sermons of bishop Caesarius of Arles (469–543) who was also a fierce opponent of abortion (cf. 2.2.1). In Chin- dasvind’s law abortion is equated with parricide; the fetus is spoken of as filius or filia, a son or a daughter: Nihil est eorum pravitate deterius, qui, pietatis inmemores, filiorum suorum necatores existunt, ‘There is nothing worse than the depravity of those who, disregarding piety, become murderers of their own children’ and [mulier] natum filium filiamve necaverit, sive adhuc in utero habens, ‘[a woman who] murders a son or a daughter which has been born, or, while having it still in utero.’ Chindasvind also punishes the husband for murder, if he is involved in any way: sed etiam si maritum eius talia iussisse vel permisisse patuerit, ‘if it is evident that the woman’s husband ordered or permitted such things’. Visigothic law is the first medieval law to employ the abortion criterion ‘formed’ - ‘unformed’. From Visigothic law we learn that there were women who asked for abortive potions, and that besides violent and involuntary abortion, intentional abortion apparently also occurred. We also learn that the abortifacient potion was probably the most frequently used method, even though the drugs involved were known to be dangerous, and that various other unspecified abortion methods and techniques could also be used. Involuntary abortion as a result of violence is punished as a serious injury to the mother. Intentional abortion is punished severely in the ‘old laws’. Aiding and abetting, that is, supplying poisonous substances is regarded as attempted murder, and punished with the death penalty, even if the victim lives. Chindasvind’s seventh-century law punishes those who commit intentional abortion, and anyone else involved with the death penalty.

BURGUNDIAN AND OSTROGOTHIC LAW ON ABORTION The early sixth-century laws of the Burgundians and Ostrogoths - Lex Burgundionum (LB), Lex Romana Bur- gundionum (LRB) and Edictum Theoderici (ETh) - applied to the Roman and Germanic population alike, and were greatly influenced by Roman law.25 They were probably intended for the elite and issued as part of the romanization of the Burgundians and Ostrogoths. It is not likely that many of the ancient oral laws of the Bur- gundians and Ostrogoths were incorporated into these laws. The man in the street probably continued to live by

24 Zeumer, Leges Visigothorum, p. 262; ‘6.3.7. King Chindasvind. Concerning those who kill their own children, either already having been born or in utero.There is nothing worse than the depravity of those who, disregarding piety, become murderers of their own children. In as much as it is said that the crime of these has grown to such a degree throughout the provinces of our land that men as well as women are found to be the performers of this heinous action, we therefore, forbidding this dissoluteness, decree that, if a free woman or a female slave murders a son or a daughter which has been born, or, while having it still in utero, either takes a potion to induce abortion, or by any other means whatsoever presumes to destroy her own fetus, after the judge of the province or of the territory learns of such a deed, let him not only sentence the performer of this crime to public execution, or if he wishes to preserve her life, let him not hesitate to destroy the vision of her eyes, but also, if it is evident that the woman’s husband ordered or permitted such things, let him not be reluctant to subject the same to a similar punishment’ (Amundsen 1971, pp. 568–569). 25 For editions and translations of the Burgundian laws, cf. Von Salis 1892 [1973], Beyerle 1936, Drew 1949, Roels 1958. See also: Nehlsen 1978a and Nehlsen 1978b. The first edition of the Ostrogothic Edictum Theoderici was printed by Pierre Pithou in Paris in 1579; this edition was based on two manuscripts which are now lost. More modern editions are Bluhme 1875-1889, pp.145-179, and Bavieri 1968, pp. 681-710. See also: Becker 1971. Part 2: Chapter 1 334

unwritten Germanic tribal law or the Roman vulgar or customary law of the provinces, neither of which survived the ravages of time.26 Neither Burgundian law (issued between 483-532) nor Ostrogothic law (c. 520) contains provisions on violent abortion; presumably all injuries caused by violence including causing a miscarriage were covered by the laws on injuries. Nor are there any articles on deliberate abortion or poisoning in LB, LRB or ETh. In all probability Roman law (LCSV, BA) was still considered applicable in these kingdoms that were founded in the center of the former Roman Empire (southeastern Gaul and northern Italy).27 However, the Burgundian and Ostrogothic divorce laws may contain an indirect allusion to the use of anti-fertility agents, contraception and intentional abortion. These laws were modelled on the late Roman divorce law issued by Emperor Constantine in 331 (CTh 3.16.1) that is also included in the Breviarium Alarici (BA 3.16.1).28 Accusing one’s spouse of being a medicamentarius, -a (CTh, BA), veneficus, -a (LRB) or maleficus, -a (LB, ETh), that is, a ‘poisoner’ or ‘magician’, was a grounds for divorce.29 It is possible that the grounds for divorcing a person’s wife in Romano-Germanic divorce law implicitly also refers to preparing, supplying and using contraceptives and abortifacients.30 Al- though there is no actual proof that these laws considered anti-fertility drugs to be poisons, there is supporting evidence in the Pauli Sententiae on poisoning and abortifacients (BA PS 5.25.1; BA PS 5.25.8), in the first Visigothic law on abortion (LV 6.3.1), and in the Salic laws on poisoning and abortifacients discussed below. Table 1.1: Terms for poisoners, magicians and ‘poison’ - ‘magic’ in Roman and Romano-Germanic divorce law Codex Theodosianus (438) CTh 3.16.1 medicamentarius, -a Breviarium Alarici (LRV) (506) BA 3.16.1 medicamentarius, -a Breviarium, interpretatio (6th c.) BA 3.16.1 maleficus, -a Breviarium, epitomes (7th-8th c.) BA 3.16.1 maleficus, -a; maleficium Lex Burgundionum (c. 500) LB 34.3 maleficium Lex Romana Burgundionum (c. 520) LRB 21.1-LRB 21.3 veneficus, -a Edictum Theoderici (c. 520) ETh 54 maleficus, -a

LOMBARD LAW ON ABORTION After the demise of the Ostrogothic kingdom (552) the Lombards or Langobards settled in northern and central Italy; they, too, were ‘Rome-orientated’. The laws of the Lombards, the Leges Langobardorum (LLa), were promulgated between 643 and 866.31 The oldest set of Lombard laws, the Edictum Rothari (ER), has four articles

26 On Roman vulgar law, cf. Levy 1942/1943, Levy 1951, and Vinogradoff 1929. 27 The Edictum Theoderici has an article on malae artes, ‘black magic’ (ETh 108), cf. Bluhme 1875-1889, p. 164. 28 A wife was allowed to divorce her husband if homicidam vel medicamentarium vel sepulchrorum dissolutorem maritum suum esse probaverit, i.e. ‘if she should prove that her husband is a homicide, a sorcerer, or a destroyer of tombs’. A husband was permitted to do the same si moecham vel medicamentariam vel conciliatricem repudiare voluerint, ‘if he wishes to divorce her as an adulteress, a sorceress, or a procuress’, cf. Mommsen, Meyer & Krüger 1905, Bd. 1.2, pp. 155-156, http://www.thelatinlibrary.com/theodosius.html; (last accessed January 17, 2010) Pharr 1952, pp. 76-77 (CTh 3.16.1), Haenel 1849, pp. 92-95 (BA 3.16.1). Using poison or magic to kill someone, adultery, destroying tombs, matchmaking, and murder were all non-pardonable crimes meriting capital punishment according to late Roman law. On late Roman divorce law, cf. Grubbs 1993, Grubbs 1995, pp. 225-242, Grubbs 2002, pp. 202 ff.; Treggiari 1991a and 1991b, Arjava 1988, Arjava 1996, p. 178. 29 For the Romano-Germanic laws on divorce, cf. Von Salis 1892 [1973], p. 68 (LB 34.3), Von Salis 1892 [1973], pp. 143- 144 (LRB 21.1-LRB 21.3) and Bluhme 1875-1889, p. 157 (ETh 54), 30 Judith Evans Grubbs quotes Plutarch on divorce who intimates that “administering poison or drugs to the children (pharmakeia)” was a grounds for divorce. She notes that pharmakeia may perhaps be a reference to “procured abortion’” (Grubbs 1995, p. 226). 31 For editions and translations of the Lombard laws, cf. Bluhme 1868, Beyerle 1962, Beyerle 1962-1963, and Drew 1973. See also: Christie 1995, Dilcher 1978, Pohl & Erhart 2005. Part 2: Chapter 1 335

on poisoning that read like an expanded version of the Roman LCSV (LLa-ER 139 - LLa-ER 142).32 The punishment for murder by poisoning is no longer the death penalty as in the LCSV and Visigothic law, but it now consists of the payment of the wergeld (LLa-ER 141).33 For a failed attempt at poisoning half the wergeld is due (LLa-ER 140), and for plotting to kill someone, that is, mixing a poisonous drink (venenum ad bibendum) twenty solidi must be paid (LLa-ER 139). Because the Lombard prohibition of poisoning was derived from Roman law, it probably also punishes preparing, supplying, selling, and administering anti-fertility drugs and love potions. Unintentionally causing a free woman to miscarry is punished in article LLa-ER 75. LLa-ER 75. De infante, si in utero matris occisus fuerit. Si infans in utero matris suae nolendo ab aliquem occisus fuerit: si ipsa mulier libera est et evaserit, adpretietur ut libera secundum nobilitatem suam, et medietatem quod ipsa valuerit, infans ipse conponatur. Nam si mortua fuerit, conponat eam secundum generositatem suam, excepto quod in utero eius mortuum fuerit, ut supra, cessante faida, eo quod nolendo fecit.34

The miscarriage seems to be the result of some sort of accident or violent incident, because LLa-ER 75 says that it happened nolendo, ‘not willingly’, ‘involuntarily’. The circumstances are not explained, and it is not clear whether we are dealing with (domestic) violence, a fight that got out of hand, and/or the kind of accidental abortion described in Exodus 21: 22-23. LLa-ER 75 awards half the mother’s wergeld as compensation for involuntary abortion. The compensation due is linked to the mother’s wergeld, and this indicates that causing a miscarriage is treated as murder.35 If the mother dies, her wergeld must be paid as well. The article concludes with a warning to the families involved that payment of compensation means that the feud should stop - cessante faida. LLa-ER 75 does not tell us exactly how the miscarriage happened. However, a second article on abortion in Lombard law that punishes causing a pregnant ancilla or servant girl to miscarry uses the verb percutere, ‘to strike, hit, beat’, thus clearly indicating that the miscarriage was caused by some sort of (domestic) violence (LLa-ER 334). LLa-ER 334. De ancilla praegnante. Si quis percusserit ancilla[m] gravida[m] et avortum fecirit, conponat solidos tres. Si autem ex ipsa percussura mortua fuerit, conponat eam, simul et quod in utero eius mortuum est.36

32 LLa-ER 139 fines preparing a poisonous drink (uenenum ad bivendum dare) in order to poison another person with 20 solidi. LLg-ER 140 punishes giving a poisonous drink (uenenum ad bivendum) to someone that turns out not to be fatal with half the person’s wergeld. LLg-ER 141 punishes poisoning (venenum ad bivendum dederit ) with fatal results with the full wergeld. LLg-ER 142 punishes poisoning by a slave (cf. Bluhme 1868, p. 32 and Drew 1973, p. 74). Twenty solidi is the fine for a moderately serious injury or crime. It is more than fine for a minor injury, but less than the fine for a serious, debilitating or permanent injury; see, for instance, LLa-ER 59, which punishes striking someone on the chest, or LLa-ER 188-189 on consensual intercourse outside marriage (Bluhme 1868, pp. 22, 45; Drew 1973, pp. 63, 87). Cf. also Drew 1973, p. 28: “The composition of twenty solidi seems to mark a division between what might be called the more and less serious cases.” 33 The Edictum Rothari does not give a list of the various amounts of wergeld. In the younger Laws issued by King Liut- prand (713-735) article 62 informs us that the wergeld for a free landowner is 300 solidi and that for a free, landless man it is 150 solidi (Bluhme, p. 132; Drew 1973, p. 170). In the ER secretly killing a free man is punished with 900 solidi, that is, three times the wergeld (LLa-ER 14), cf. Bluhme 1868, p. 15; Drew 1973, p. 55. Twelve hundred solidi is awarded for killing a free woman in LLa-ER 200 and LLa-ER 201 (Bluhme 1868, pp. 49-50; Drew 1973, p. 91). The amount of compensation awarded is high, possibly because these articles deal with exceptional murder cases; in LLa-ER 200 a husband has killed his innocent wife and in LLa-ER 201 a free woman was killed deliberately. 34 Bluhme 1868, p. 24. ‘LLa-ER 75. On the death of a child in its mother’s womb. If a child is accidentally killed while still in its mother’s womb, and if the woman is free and lives, then her value shall be measured in accordance with her rank, and composition for the child shall be paid at half the sum at which the mother is valued. But if the mother dies, then composition must be paid for her according to her rank in addition to the payment of composition for the child killed in her womb. But thereafter the feud shall cease since the deed was done unintentionally’ (Drew 1973, p. 65). 35 Note that the fetus is called infans not partus in Lombard law, which is also an indication that the death of the fetus was regarded as murder. 36 Bluhme 1868, p. 76. ‘LLa-ER 334. On pregnant woman slaves. He who strikes a woman slave large with child and causes a miscarriage shall pay three solidi as composition. If, moreover, she dies from the blow, he shall pay composition for her and likewise for the child who died in her womb’ (Drew 1973, p. 117). Part 2: Chapter 1 336

LLa-ER 334 awards three solidi for the miscarriage, and if the slave is killed, her life must also be compensated. The fine in LLa-ER 334 should probably be explained as compensation for damages to the master’s property.37 Both Lombard articles punish violent abortion, and treat causing a miscarriage as a serious injury to the mother or the master’s property. Additional injuries to the woman were covered by the injury tariffs. Supplying and administering abortifacient potions is probably forbidden by the Lombard law on poisoning, even though neither abortifacients or deliberate abortion at the request of the mother are mentioned.

SALIC LAW ON ABORTION The laws of the Salian Franks were the most popular and the most influential of the Germanic law codes. They were issued between 507/511 and 830. The sixth-century Merovingian redactions are called Pactus Legis Sali- cae (PLS) and the eighth- and ninth-century redactions are collectively called Lex Salica (LS).38 The oldest redactions are contemporary with the Visigothic antiquae and the Breviarium Alarici, and it is very likely that the compilers of the Salic laws were acquainted with either or both of these laws. Salic law contains articles on poisoning, anti-fertility agents and violent abortion. The oldest recensions of the Pactus Legis Salicae (PLS) have two articles on poisoning in the title De Maleficiis, ‘on poison (magic)’ (PLS 19.1 - PLS 19.2).39 They punish fatal poisoning as murder, and demand 200 solidi, the wergeld for a free man. If the victim survives the poisonous herbal drink or maleficium (‘poisonous or magical drug’), 62 ½ solidi (about a third of the wergeld for a man) is due for attempted murder, that is, inflicting a serious injury.40 We find the same articles in the younger redactions: the eighth-century Lex Salica (LS 24.1 - LS 24.2), and the ninth-century Lex Salica Karolina (K 19.1 - K 19.2). Mid- to late sixth-century Pactus redactions add two articles to the title De Maleficiis which provide examples of the kind of poisoning that was prohibited; these articles are also in the younger Lex Salica and Lex Salica Karolina redactions. The second supplementary article forbids women to prepare anti-fertility drugs for other women (PLS 19.4; LS 24.3; K 19.4).41 PLS 19.4. Si que mulier, alteri mulieri maleficium fecerit, ut infantem habere non possit, MMD denar. qui faciunt sol. LXII cum dimidio culpabilis iudicetur.42

The phrase ut infantem habere non possit, ‘so she cannot have a/the child’, is ambiguous, and can be explained as a reference to and prohibition of contraceptives and/or abortifacients.43 The Pactus apparently associates poi-

37 LLa-ER 334 is preceded by articles that punish hitting farm animals and causing them to abort (cf. LLa-ER 332 - LLa-ER 333). The value of the unborn child of a slave - three solidi - is slightly higher than that of a foal - which is worth one solidus. In the injury tariffs three solidi is the fine for a minor injury to a free man, for example, cutting off a toe (cf. LLa-ER 69-73; LLa-ER 96-100; LLa-ER 120-124). The value of a slave varies between 20 and 60 solidi (LLa-ER 129 ff.); LLa-ER 137 states that the value of a slave’s child is usually determined by the judge. 38 The standard edition of Salic law is Eckhardt’s two volume Monumenta edition: Eckhardt 1962 and Eckhardt 1969. For other editions and translations by Eckhardt, see: Eckhardt 1935, 1953a, 1953b, 1954, 1955, 1956 and 1957. There are two English translations: Rivers 1986 and Drew 1991. On the manuscripts and the various redactions, cf. Eckhardt 1962, pp. ix- xxvii. On Salic law and society, see, for instance: Wallace-Hadrill 1962, McKitterick, 1977, Schmidt-Wiegand 1978e, 1991, Wemple 1981, James 1982, 1988, Murray 1983, King 1987, Drew 1988, Geary 1988, 1989, 1990, 1994a, 1994b, 2001, 2004, Reuter 1991, Wood 1994, Wormald 1999, Smith 2005, Wickham 2005, Noble 2006. On abortion and poisoning in Salic law, see: Niederhellmann 1983 and Elsakkers 2003b. [article IV] 39 Eckhardt 1962, pp. 80-83. 40 Other Salic laws also require payment of 62 ½ solidi for attempted murder, cf. PLS 16.1 (arson), PLS 17.1 (attempted murder) and PLS 17.2 (attempted murder by poisoned arrow). For the Salic articles on wergeld, cf. note 42. 41 The third article (PLS 19.3) punishes casting a spell over another person; this article probably forbids giving another person hallucinatory drugs. 42 Eckhardt 1962, p. 82-83; ‘PLS 19.4. If a woman makes a maleficium for another woman, so she cannot have the/a child, she shall be liable to pay 62½ solidi’. We find this version of PLS 19.4 in recensions H (22.2) and E 16. H refers to Herold’s early printed edition, which probably incorporated early B and C manuscript versions of the Pactus. Part 2: Chapter 1 337

soning with anti-fertility drugs, just as in Roman (LCSV) and Visigothic law (LV 6.3.1). The fine of 62 ½ solidi for attempted murder or failed poisoning indicates that the Salians knew that these dangerous, and potentially lethal drugs could cause a woman’s death. Note, however, that, unlike Visigothic law, Salic law does not punish the woman who asked for the potion; as in Roman law only the supplier of the drugs is punished. This means that fertility management was not in itself prohibited. Usage of the word maleficium, a word notorious for its double meaning ‘poison’ - ‘magic’, to denote anti-fertility drugs in PLS 19.4 is interesting, because it seems to explicitize the association of maleficia with poison and anti-fertility drugs suggested above in the discussion of the late Roman, Ostrogothic and Burgundian divorce laws. The word herba, ‘herbs’, is regularly used as a synonym of maleficium in the various versions of the Salic laws on poisoning, thus explaining that herbs were the ingredients of the poisonous (antifertility) concoctions. The repeated use of the verb bibere in the various articles and recensions indicates that the drugs were administered in potions. Salic law has two articles on violent abortion that are comparable to Visigothic law (LV 6.3.2 - LV 6.3.6). The first article punishes assaulting a pregnant woman and causing her death. PLS 24.5. Si quis femina[m] ingenua[m] et grauida[m] trabaterit si moritur, XXVIIIM din. qui f. sol. DCCC culp. iud.44

The woman’s murder must be compensated with her wergeld (600 solidi) plus one hundred (or two hundred) solidi for violently causing a miscarriage and loss of the fetus.45 Most versions use the verb trabattere, ‘to hit, beat, batter, whip’, instead of occidere or interficere, thus suggesting (domestic) violence (a ‘battered wife’). The companion article awards a compensation of 100 solidi for killing an infans in utero and for early infanticide, the same amount that was added to the woman’s wergeld in most versions of PLS 24.5.46 PLS 24.6. Si uero infantem in utero matris suae occiderit [aut] ante quod nomen habeat cui fuerit adprobatum, IIIIM din. qui f. sol. C culp. iudic.47

The fine of 100 solidi in PLS 24.5 - PLS 24.6, that is, half the wergild for a free man, indicates that causing a woman to involuntarily miscarry is a serious crime, albeit not as serious as homicide, because 100 solidi is the compensation for an amputation, or a serious, debilitating injury. It is less than the wergeld for a young child.

43 The ambiguity of ut infantem habere non possit can be explained by the fact that early term abortion and contraception were not and could not always be clearly distinguished. The version in recensions C5 and K has infantes instead of infantem, thus only prohibiting contraception: PLS 19.4. Si quis mulier altera mulieri maleficium fecerit unde infantes non potuerit habere, sol. LXIIς cul. iud., ‘If a woman makes a maleficium for another woman, so she cannot have children, she shall be liable to pay 62½ solidi’. Cf. Elsakkers 2003b, pp. 257-260. [article IV] 44 Eckhardt 1962, pp. 90-91; ‘PLS 24.5. He who strikes a pregnant free woman, and if she dies, shall be liable to pay twenty- eight thousand denarii, that is, eight hundred solidi’ (Drew 1991, p. 86, emended translation). The version quoted here is in manuscript A1 (PLS 24.3). The compensation required in the majority of the other versions is 700 solidi (600 + 100), not 600 plus 200 solidi as in the version quoted above. See also: PLS 41.19 and LS 31.2. 45 The wergeld for a free woman of the child-bearing age in the Pactus is 600 solidi, cf. PLS 24.8, PLS 41.16, PLS 65e.3. The wergeld for a young girl is 200 solidi (PLS 41.15; PLS 65e.2), and the same amount must be paid for killing a woman over forty (past the child-bearing age), cf. PLS 24.9, PLS 41.17, PLS 65e.4. The wergeld for a boy under twelve and for a ‘long-haired’ boy is 600 solidi (PLS 24.1, PLS 24.4, PLS 41.18), and the wergeld for a free Frankish man is 200 solidi (PLS 41.1). The amounts are practically the same in the Lex Salica. The compensation for causing a serious, disabling injury is 100 solidi, for instance, striking out an eye, cutting off a nose, an ear, a hand or a foot or castrating someone (cf. PLS 29.1 ff.). The injury tariffs indicate that loss of the fetus must be regarded as a form of amputation. 46 Early infanticide is defined as ‘before the child has a name’ in this version; variant versions have ‘within nine days (or nights) after birth’. Apparently, a fetus and a newborn child without a name had the same status: neither was considered a separate individual with a right to its own wergeld yet until it had lived for nine days or had been given a name. On early infanticide, cf. Niederhellmann 1983, pp. 122 ff. and chapter 1, note 99. See also: Elsakkers 2003b, p. 242-243. [article IV] 47 Eckhardt 1962, pp. 90-91; ‘PLS 24.6. If a person kills an infant in its mothers’s womb [or] before it has a name, and if it is proved against him, he shall be liable to pay four thousand denarii, that is, one hundred solidi’ (Drew, p. 86, emended translation). The version quoted here is in manuscript A1 (PLS 24.4). Some manuscripts have ‘within nine nights’ instead of ‘before it has a name’ (C5 and C6). See also: PLS 41.20 and LS 31.3. Part 2: Chapter 1 338

The fine of 100 solidi should be interpreted as compensation for loss of the fetus, for the violence done to the pregnant woman, and, if she lives, also for injuries she sustained as a result of the miscarriage. Articles III.104.4 - III.104.8 in the Third Merovingian Capitulary indicate that violent abortion was considered such a serious crime in the late sixth century that it was punished as murder. Third Merovingian Capitulary III.104.4. Si quis mulierem ingenuam pregnantem in uentre aut in renis percusserit pugno aut calce et ei pecus non excutiat et illa propter hoc grauata fuerit quasi usque ad mortem, CC solidos culpabilis iudicetur. III.104.5. Si quis uero pecus mortuum excusserit et ipsa euaserit, DC solidos culpabilis iudicetur. III.104.6. Si uero ipsa mulier propterea mortua fuerit, DCCCC solidos culpabilis iudicetur. III.104.7. Si uero mulier, qui mortua est, pro aliqua causa in uerbum regis missa est, MCC solidos culpabilis iudicetur. III.104.8 Si uero infans puella est, qui excutetur, MMCCCC solidos conponat.48

These articles punish violently causing a miscarriage, and none of the Old Germanic laws on abortion describes the (domestic) violence done to the woman as bluntly as article III.104.4: ‘hits (…) in the stomach or in the kidney with fist or foot’. If the pregnant woman dies 900 solidi must be paid, that is, her wergeld plus 300 solidi for the violence that led to her death - more than in PLS 24.5. The Third Merovingian Capitulary compensates loss of the fetus in articles III.104.5 and III.104.8. It differentiates between early term and late term abortion, and demands compensation for murder, if the sex of the aborted fetus is recognizable, that is, if the fetus is formed: si uero infans puella est (III.104.8). A fine of 2400 solidi, that is, twelve times (!) the wergeld for a young girl (200 solidi), must be paid for a female fetus, and 600 solidi (the wergeld for a young boy) must be paid for an unformed fetus (pecus), and by implication also for a male fetus (III.104.5). The Aristotelian criterion we en- countered in Visigothic law is now defined in terms of sex distinction.49 The Merovingian capitulary is much stricter than the other Salic laws, but its influence seems to have been short-lived, because the younger articles in the Lex Salica (LS 31.2 - LS 31.3) and the Lex Salica Karolina (K 26.1 - K.26.5) all follow the Pactus, which punishes violent abortion as a serious injury or amputation, but not as murder. The laws of the Salian Franks punish violent abortion, but they do not punish intentional abortion or asking for an abortifacient. The Salic laws on poisoning punish supplying poisonous anti-fertility drugs, and they seem to have been influenced by the Roman LCSV tradition. It is clear that contraceptives and abortifacients were known to be dangerous herbal concoctions and that women were the ones who supplied other women with these drugs.

RIPUARIAN LAW ON ABORTION The Lex Ribuaria (LRib) contains the laws of the Ripuarian Franks - a tribe living under Salian Frankish rule in northern Gaul (Austrasia) in the neighborhood of Cologne.50 It was probably promulgated during the reign of King Dagobert I (623-639), and its direct source is the Pactus Legis Salicae. Ripuarian law - also called the Lex Salica Revisa - is a condensed version of Salic law, but not a carbon copy of it.

48 Eckhardt 1962, p. 260 (reconstructed version); Third Merovingian Capitulary ‘III.104.4. He who strikes a pregnant free woman in the stomach or in the kidney with fist or foot, and she does not lose her fetus but she is weighed down almost to death on account of this, shall be liable to pay two hundred solidi’; ‘III.104.5. If the fetus emerges [is expelled] dead but she herself lives, he [who struck her] shall be liable to pay six hundred solidi; III.104.6. But if the woman dies because of this, he shall be liable to pay nine hundred solidi; III.104.7. If the woman who died had been placed under the protection of the king for any reason, he [who struck her] shall be liable to pay twelve hundred solidi; III.104.8. If the child which was aborted was a girl, he shall pay twenty-four hundred solidi’ (Drew 1991, pp.147-148). 49 See also: PLS 65e.1, which is only found in Herold’s edition, cf. Elsakkers 2003b, pp. 242-243 plus table 7. [article IV] 50 For editions and translations of the Lex Ribuaria, cf. Sohm 1875-1889, Eckhardt 1934a, 1959, 1966, Beyerle 1940, Beyerle & Buchner 1954 (standard edition), Rivers 1986. See also: Buchner 1940, Wormald 1977, Schmidt-Wiegand 1978a, James 1982, Reuter 1991, 2001, Wood 1994. Rivers’s English translation (Rivers 1986) was based on Eckhardt 1934a, which also contains a German translation. Part 2: Chapter 1 339

The articles on poisoning (LRib 86.1 - LRib 86.2) are in the title De Maleficio, ‘on poison - magic’, and were derived from PLS 19.1 - PLS 19.2. LRib 86 (83). [De maleficio] LRib 86.1. Si quis baro seu mulier Ribvaria per maleficium aliquem perdiderit, wirigeldum conponat. LRib 86.2. Sin [Si] autem mortuus non fuerit, et varietatem seu debilitatem probabile ex hoc in corpus habuerit, 100 sol. culpabilis iudicetur, aut cum sex iuret.51

Murder by poisoning must be compensated with the wergeld.52 The punishment for a failed attempt at poisoning is 100 solidi, half the wergeld for a man, a sum comparable to the 62 ½ solidi Salic law awards to victims of attempted murder.53 LRib 86.1 states that a poisoner or magician can be either a man or a woman, and LRib 86.2 adds an interesting clause on the injuries that can be sustained by the victim: et varietatem seu debilitatem probabile ex hoc in corpus habuerit, ‘and if, presumably due to this [i.e., the poison], he (or she) has become physically ill or invalided’. This clause shows us that people knew that maleficia could seriously impair a person’s health.54 One of the variant versions of LRib 86.1 has: per venenum seu per aliquod maleficium, ‘by means of poison or any other kind of maleficium’ instead of per maleficium, thus showing us that one of the meanings of the word maleficium is ‘poison’ (venenum), and that the word maleficium can also refer to other devious methods of murder.55 Even though neither contraceptives nor abortifacients are mentioned in the Lex Ribuaria, supplying a woman with anti-fertility drugs was probably regarded as poisoning, because these drugs were known to be potentially lethal (cf. PLS 19.4). In the Lex Ribuaria the Pactus articles on killing a pregnant woman (PLS 24.5), a fetus in utero and early infanticide (PLS 24.6) were combined into one article: LRib 40.10. Si quis partum in feminam interfecerit seu natum, priusquam nomen habeat bis quinquagenos solid. culpabilis iudicetur. Quod si matrem cum partu interfecerit, septingentos solid. multetur.56

The LRib 40.10 chose the more neutral verb interficere instead of trabattere (PLS 24.5), so that the association with (domestic) violence is less obvious. The compensation for miscarriage and early infanticide is the same as for attempted poisoning: 100 solidi, and must be interpreted as a fine for loss of the fetus and seriously injurying the mother.57 The compensation due if both the pregnant woman and her unborn child die is 700 solidi, that is, 100 solidi for causing a miscarriage plus 600 solidi, the wergeld for a woman of the child-bearing age.58 As in

51 Beyerle & Buchner 1954, p. 131; ‘LRib 86. Concerning magic - poison. 86.1. If a man or Ripuarian woman kills anyone through a maleficium [Rivers: ‘a magic potion’], let him compensate with the wergeld. 86.2. But if [the victim] does not die, and if, presumably due to this [i.e., the poison], he (or she) has become physically ill or invalided, let [the perpetrator] be held liable for 100 solidi, or let him swear with six [oathtakers]’ (Rivers 1986, pp. 210-211, emended translation). Rivers’s translation of varietatem seu debilitatem probabile ex hoc in corpus habuerit, ‘but undergoes some change or injury to his body, probably from this influence’, must be rejected. 52 The wergeld for a woman capable of bearing children (under forty) is 600 solidi (LRib 12.1). As in Salic law a woman in her prime is worth three times the wergeld of a man, which is 200 solidi (LRib 7). The wergeld for a young boy is not mentioned in Ripuarian law; in the PLS it is 600 solidi. The wergeld for a young girl (LRib 13) and a woman over forty (LRib 13a) is 200 solidi. 53 There are no separate articles on attempted murder in the Lex Ribuaria. One hundred solidi is the compensation for a serious injury or amputation, such as cutting off an ear and causing deafness (LRib 5.1), knocking out an eye (LRib 5.3), and cutting off a hand (LRib 5.4) or a foot (LRib 5.8). 54 An early redaction of the PLS must have been used, because the Lex Ribuaria does not include the article on anti-fertility drugs in the Pactus (PLS 19.4). 55 This variant is found in MSS A8, A10 and the B recensions, cf. Beyerle & Buchner 1954, p. 131. 56 Beyerle & Buchner 1954, p. 94; ‘LRib 40.10. If anyone kills the fetus within a woman or a newborn before he has a name, let him be held liable for twice fifty solidi. If he kills the mother along with the fetus, let him be fined 700 solidi’ (Rivers 1986, p. 185). LRib 40.10 is in the title called De diversis interfectionibus, ‘Concerning different (categories of) homicide’. Early infanticide is defined as ‘before the newborn has a name’, and, as in Salic law, causing the death of a fetus or a newborn baby is not yet compensated with the wergeld. See also: chapter 1, note 99. 57 See: chapter 1, note 52. 58 Cf. chapter 1, notes 51 and 52. Part 2: Chapter 1 340

the PLS and the LS no distinction is made between early term and late term abortion. The fetus is not considered to be a person in its own right, because killing it does not require payment of the wergeld. Like many of the other laws issued for the Germanic tribes living within the Frankish kingdom, Ripuarian law is derived from and dependent on Salic law. The fines are sometimes slightly higher, but this may be due to a difference in money standard. The laws on poisoning and violent abortion are both concise versions of the corres- ponding Salic laws. An interesting point in the Lex Ribuaria is the fact that LRib 86.2 mentions the effects poisoning can have on a person’s health. Supplying or administering anti-fertility drugs can be punished under the law on poisoning, and violent abortion is punished as a serious injury to the mother that is comparable to an amputation. Family planning is not mentioned or hinted at.

ALAMANNIC LAW ON ABORTION Two recensions of the Leges Alamannorum, the laws of the Alamans (eastern Rhine, southwestern Germany, Alsace, Switzerland), have come down to us.59 The early seventh-century (c. 613) Pactus Legis Alamannorum (PLA) is slightly older than the Lex Ribuaria. It was probably promulgated under Merovingian auspices, when Chlotar II (584-629) was king of Gaul, and this is probably the reason that, like the laws of the Ripuarian Franks, Alamannic law reads like a supplementary law, in this case a law issued especially for the Alamans, and meant to be used in conjunction with the overlord’s Salic laws. The younger redaction, the Lex Alamannorum (LA), was probably issued by the Alamannic duke Lantfrid in the early eighth century (c. 720). 60 The Alamannic law codes do not have any laws that specifically prohibit intentional abortion, poisoning, maleficia or anti-fertility drugs. Salic law was probably applicable. The Pactus Legis Alamannorum contains a few articles that may indirectly be concerned with poisoning or magic. PLA 13.1 and and PLA 14.1 - PLA 14.11 suggest that (h)erbaria, ‘female herbalist’ (‘poisoner’?) and stria ( = striga), ‘witch’, were terms of abuse for women, and PLA 13.1 indicates that women used these pejorative terms among themselves.61 These Alamannic laws seem to be deficient without provisions that explain whether, why, if and how herbalists, poisoners, magicians and witches were punished. If read in conjunction with the Salic laws that punish poisoners (PLS 19.1

59 The standard edition of the laws of the Alamans is Lehmann & Eckhardt 1966. For translations, cf. Eckhardt 1958, 1934b and Rivers 1977. On Alamannic law and the history of the Alamans, see: Geary 1988, Reuter 1991, Wood 1994, Wormald 1977, e.a. The two redactions of the Leges Alamannorum are designated by an ‘A’ and a ‘B’ in the articles quoted below, cf. Lehmann and Eckhardt 1966, pp. 11-18. 60 “The Alamans had been subject to the Franks since the reign of Clovis.” (…) “The region, nevertheless, retained its own identity, with its own duces, and its own law code, perhaps issued by Chlothar II” (Wood 1994, pp. 285, 161). On the Lex Alamannorum Wood says: “Apparently, in the early eighth century Lantfrid usurped the right to issue a law code.” (…) “There could be no clearer way for a dux to assert independence than that he should issue his own version of his people’s law code” (Wood 1994, pp. 118, 285). 61 PLA 13.1. Si femina aliam stria aut erbaria clamaverit sive rixam, sive absente hoc dixit, solvat sol. 12 (Lehmann & Eck- hardt 1966, p. 24); ‘PLA 13.1. If a woman calls another [woman] a witch or a herbaria, whether it is said in a dispute [in the presence of the accused] or in her absence, let her pay twelve solidi (Rivers 1977, p. 50; emended translation). PLA 14.1. Si quis alterius ingenuam de crimina seu stria aut herbaria sisit et eam priserit et ipsam in clita miserit, et ipsam cum 12 medicus [medios] electus aut cum spata tracta quilibet de parentes adunaverit, LXXX solid. componat (Lehmann & Eckhardt 1966, p. 24); ‘PLA 14.1. If anyone accuses another’s freewoman of the crime of being either a witch or a herbaria, and seizes her and puts her into a clita (‘hurdle’), let him compensate eighty solidi, and let her be defended by her relatives with twelve men, half of whom are chosen, or with a drawn sword (Rivers 1977, p. 50; emended translation). Eckhardt translates as follows: ‘14.1. Wenn einer eines andern Freien des Verbrechens einer Hexe oder Giftmischerin beschuldigt und sie ergreift und sie auf die Hürde legt und irgendwelcher von den Verwandten sie mit 12 zur Hälfte Ausgewählten oder mit gezogenem Schwert reinigt, büβe er 80 Schillinge’ (Eckhardt 1958, p. 111). Eckhardt explains the difficult passage clita miserit in note 1: “zwecks Erzielung eines Geständnisses (Merkel, Lehmann), nicht: um verbrannt zu werden (Franz Beyerle). Die den Verwandten offengehaltene Art des Eingreifens zeigt eindeutig, daβ es sich um ein Beweismittel handelt”. Another translation suggested for sisit is ‘grabs’. PLA 14.2 - PLA 14.11 discuss the same subject with different actors. On terms of abuse for women that are associated with magic and poisoning, cf. Niederhellmann 1983, pp. 106-119. Part 2: Chapter 1 341

- PLS 19.4) these articles may make somewhat more sense.62 Even though PLA 13.1 and PLA 14.1 - PLA 14.11 do not seem to have anything to do with abortion, they are interesting. They show us that herbcraft and witchcraft were associated with women, and that the word for ‘a woman knowledgeable about herbs and herbal remedies’ seems to have (or have acquired) a negative connotation in Alamannic society. This probably means that female herbalists were able to mix the poisons, maleficia, and anti-fertility potions mentioned in PLS 19.1- 19.4. Alamannic law has articles on injuries (PLA 2 ff., LA 57.1 ff.), on hitting women (PLA 2.7; LA 92.1 - LA 92.5), and on murdering women (PLA 15; LA 60.2).63 There is no separate law on killing a pregnant woman, as in Salic and Ripuarian law, but it is obvious that such a crime would have to be compensated with the wergeld. However, there is an Alamannic counterpart to the laws that punish causing an abortion: PLA 12. Si quis mulier gravata fuerit, et per facto alterius infans mortuos natus fuerit, aut si vivus natus fuerit et novem noctis non vivit, cui reputatum fuerit, 40 sol. componat [aut cum 12 medios electos iuret].64 LA 70. Si qua mulier gravida fuerit, et per factum alterum infans natus mortuus fuerit, aut si vivus natus fuerit et novem noctes non vivit, cui reputatum fuerit, 40 solidos solvat aut cum 12 medios electos iuret.65

The compensation for causing a woman to miscarry, forty solidi, is demanded irrespective of whether the child is born dead (mortuus natus) or dies within the first nine nights of its life (vivus natus).66 The sum of forty solidi is the fine for causing a serious injury such as cutting off or amputating a person’s ear, hand, arm or foot.67 This means that causing a miscarriage can be interpreted as an amputation, that is, as a serious, disabling injury to the mother. Whereas other Old Germanic laws on violent abortion give us some idea of the kind of violence that caused the miscarriage by using verbs such as trabattere, occidere or interficere, Alamannic law only tells us that the abortion was involuntary and happened per facto alterius, ‘through the act of another’. No method or circumstances are mentioned. This means that PLA 12 and LA 70 can punish violent abortion, but that they could also be used to punish the supplier of a (poisonous) abortifacient.

62 It is also possible that these articles refer to issues dealt with more extensively in oral, customary law. 63 PLA 2.7 and LA 92.1 both compensate hitting a woman with two solidi, if no blood flows. The wergeld for an Alamannic woman (320 solidi) is double the amount of the wergeld for a free man (160 solidi), cf. LA 60.1 - LA 60.3; PLA 15 does not specify the amount of the wergeld. The wergeld for children is not mentioned, which implies that Salic law was probably applicable. The compensations for serious injuries indicate the relative seriousness of the injuries punished, cf. PLA 2, 5, 6, 8, 9, 10.1 ff. and LA 57.42 ff. For instance, cutting off a person’s thumb costs 12 solidi. Injuring someone’s head so that the brain pro- trudes costs 12 solidi (PLA 1.1; LA 57.6), and so does injuring a person’s leg so that he must walk with a crutch (PLA 11.3). Twelve solidi is the compensation for an injury that is slightly less serious than causing the victim to become an invalid. If someone’s arm is crippled, 20 solidi must be paid (LA 57.38). Twenty-four (or twenty-five) solidi is awarded for crippling injuries, such as for piercing a person’s chest (PLA 8.2, 11.3; LA 57.56). Cutting off a hand, arm or foot is a major amputation that requires payment of 40 solidi (PLA 10.3, LA 57.39; PLA 11.1, LA 57.66), because the victim has become an invalid. 64 Lehmann & Eckhardt 1966, p. 24; ‘PLA 12. If any woman is pregnant and through the act of another the child is born dead, or if it is born alive but does not live for nine nights, let him who is accused pay forty solidi or swear with twelve men, half of whom are chosen’ (Rivers 1977, p. 50). 65 Lehmann & Eckhardt, p. 137; ‘LA 70. If any woman is pregnant and through the act of another the child is born dead, or if it is born alive but does not live for nine nights, let him who is accused pay forty solidi or swear with twelve men, half of whom are chosen’ (Rivers 1977, p. 93). Some of the manuscripts have octo noctes or octo dies instead of novem noctes. The titles in the list of chapter-titles vary considerably: [70] De mulieri prinata et partum periclitatum, [70] De eo, qui gra- vide mulieri natum interfecerit, [70] De gravida muliere et ab alio dampnata, [70] Si quis muliere gravida instrigaverit (A manuscripts) or [77] De eo, qui gravidae mulieri natum interficerit (B manuscripts), cf. Lehmann & Eckhardt 1966, pp. 48- 49, 58-59. Rivers chose the fourth variant and translates: ‘If anyone bewitches a pregnant woman’ (Rivers 1977, pp. 64, 93). 66 On early infanticide, cf. chapter 1, note 99. 67 Cf. chapter 1, note 63. Part 2: Chapter 1 342

The early eighth-century Lex Alamannorum adds a second set of articles (LA 88.1 - 88.2) on involuntary abortion that seem to complement the articles discussed above.68 The addition of these articles is in itself significant, because it implies that supplementary legislation on abortion was apparently necessary. LA 88.1. (A) Si quis aliquis mulierem prignantem aborsum [B: abortivum] fecerit, ita ut iam cognoscere possis, utrum vir an femina fuisset: si vir debuit esse, cum 12 solidos conponat; si autem femina, cum 24. LA 88.2. (A) Si nec utrum cognoscere potest, et iam non fuit formatus in liniamenta corporis, 12 solidos conponat. Si amplius requiret, cum sacramentalis se edoniet.69

Again, no indication as to how the miscarriage happened is given. The articles tell us that ‘someone’, other than the mother is to blame for causing the miscarriage (aborsum facere), but that is all. The compensation demanded in LA 88.1-88.2 is differentiated according to the stage of development of the fetus. The Aristotelian distinction ‘formed’ - ‘unformed’ is used, and it is formulated in terms of sex distinction: si cognoscere possis utrum vir an femina fuisset, ‘if you are able to recognize whether it would have been a boy or a girl’, and si nec utrum cognoscere potest, et iam non fuit formatus in liniamenta corporis, ‘if [its sex] cannot immediately be recognized, and [the fetus] was not yet formed in [its] bodily features’.70 For an unformed fetus and for a male fetus a fine of 12 solidi is required, and for a female fetus twice the amount, 24 solidi, must be paid.71 The sums due are for less serious injuries than a major amputation, but certainly not for negligible injuries.72 In Alamannic law the fetus’s death is not punished as murder, but as a serious injury to the mother. If we read PLA 12 - LA 70 and LA 88.1 - LA 88.2 together and add up the fines, two things are punished: seriously injurying (amputation) the mother (40 solidi) and loss of the fetus (12 or 24 solidi). Alamannic law punishes involuntary abortion and employs the Aristotelian abortion criterion - here defined as gender distinction, but it gives us hardly any information about the circumstances or the method used. Nor does it contain any evidence that intentional abortion occurred, or that any other kind of family planning method was used. All we have is a vague suggestion that Alamannic women like Salic women were knowledgeable about herbs. There may be a connection between women and anti-fertility potions, but there is no hard proof.

BAVARIAN LAW ON ABORTION The Lex Baiuvariorum or Lex Baiwariorum (LBai), the law book of the Bavarians (southeastern Germany, Aus- tria), was probably compiled between 740 and 748.73 Bavarian law has a series of articles on abortion that were

68 The compensations for loss of the fetus in LA 88.1 - 88.2 should probably be added to those in PLA 12 and LA 70. 69 Lehmann & Eckhardt 1966, pp. 150-151; ‘LA 88.1. If anyone causes an abortion in a pregnant woman so that you are able to immediately recognize whether [it] would have been a boy or a girl: if it was to be a boy, let him compensate with twelve solidi; however, if a girl, [let him compensate] with twenty-four. LA 88.2. If whether [the fetus is male or female] cannot immediately be recognized, and [the fetus] was not yet formed in [its] bodily features, let him compensate with twelve solidi. If [the claimant] seeks more, let him clear himself with oathtakers’ (Rivers 1977, p. 98, emended translation). Rivers’s translation of non fuit formatus in liniamenta corporis, ‘[the fetus] has not changed the shape of the mother’s body’ must be rejected, because the text of LA 88 does not refer to the mother, but to the formation of the fetus’s external genitalia. The text of LA 88 in the B MSS has a title: LA 91 (B) De eo, qui mulieri pregnanti abortivum fecerit (Lehmann-Eckhardt, p. 150). The A manuscripts only include titles in the list of chapter headings: [88] De his, qui mulierem prignantem aborsum fecerit; [88] De eo, qui mulieri pregnante abortivum fecerint; [88] De aborsum mulieris; [88] De eo, qui mulieri pregnante abortivum fecit (Lehmann & Eckhardt, pp. 50-51). 70 Cf. Elsakkers 2008. [article IX] 71 The wergeld for an adult woman is also double that of an adult male, cf. chapter 1, note 63. An epitome or excerpt of this article in the two younger C manuscripts awards 24 solidi for a female fetus, 12 solidi for a male fetus, and 20 solidi for an unformed fetus: LA 34. Si pregnanti mulieri aborsum fecerit, si vir debuit esse, 12 solidos; si femina 24 solidos. Si non cognoscere possit, utrum sit, 20 solidos (Lehmann & Eckhardt 1966, p. 159). 72 Cf. chapter 1, note 63. 73 Editions and translations the Lex Baiuvariorum were published by Merkel 1863, Beyerle 1926 (based on the Ingolstadt manuscript), Eckhardt 1934b, Von Schwind 1926 (standard edition) and Rivers 1977. Rivers’s English translation was based Part 2: Chapter 1 343

influenced by the Visigothic laws discussed above (LV 6.3.1 - LV 6.3.7). Abortifacients and violent abortion are discussed in title 8, a separate title devoted to women’s affairs labelled: De uxoribus et causis, quae sepe contin- gunt, ‘On married women and matters that often concern them’. 74 LBai 8.18 punishes the woman who supplies or administers (dederit) an abortifacient potion. LBai 8.18. [De avorso per potionem facto]75 Si qua mulier potionem, ut avorsum faceret, dederit, si ancilla est, CC flagella suscipiat, et si ingenua, careat libertate servitio deputanda cui dux iusserit.76

At first sight LBai 8.18 seems to be an almost literal copy of the first Visigothic article on abortion (LV 6.3.1). However, a comparison of the texts shows us that the Bavarian lawgiver only used the Visigothic text as a starting-point. Table 1.2: Comparison of LV 6.3.1 and LBai 8.18 LV 6.3.1 Si quis mulieri pregnanti potionem ad avorsum aut pro necando infante dederit occidatur; LBai 8.18 Si qua mulier potionem ut avorsum faceret, dederit,

LV 6.3.1 et mulier, que potionem ad aborsum facere quesibit, si ancilla est, CC flagella suscipiat; LBai 8.18 si ancilla est, CC flagella suscipiat,

LV 6.3.1 si ingenua est, careat dignitate persone et cui iusserimus servitura tradatur. LBai 8.18 et si ingenua, careat libertate servitio deputanda cui dux iusserit.

The Bavarian article differs significantly from its Visigothic source. It not only omits the phrase aut pro necando infante, but it also does not punish the woman who asked for an abortifacient.77 Only the woman who fur- nished the potion is punished. This woman is not condemned to death as in LV 6.3.1, but she is punished with loss of liberty (free woman) or two hunderd lashes (ancilla) - the Visigothic punishment for the woman who asked for an abortifacient. Like the Roman law on poisoning (LCSV) LBai 8.18 apparently considers an abortifacient to be a poisonous, potentially lethal substance. Note, however, that the Bavarian punishment for supplying or administering an abortifacient - a form of attempted poisoning - is much severer than the punishment for attempted poisoning (twelve solidi) in the Bavarian law on poisoning.78 An interesting difference between the Visigothic and the Bavarian articles is the change of the subject quis, ‘anyone’, to qua mulier, ‘any woman’. By switching from an indefinite, genderless pronoun to a feminine noun Bavarian law tells us that providing preg-

on Beyerle’s edition (Rivers 1977, pp. 107 ff.). See also: Eckhardt 1927, Geary 1988, Kottje 1986, Morsak 1977, Reuter 1991, Siems 1978, Wood 1994, Wormald 1977 e.a. The preface of the Lex Baiuvariorum claims that this law dates back to the sixth century, or at least the first half of the seventh century (Dagobert I’s reign), cf. Von Schwind 1926, pp. 197-203. The preface also explains that, besides written law, unwritten, customary law (mos, consuetudo) was also important. 74 Von Schwind 1926, p. 353. The other articles in this section deal with adultery, fornication, abduction, sexual harassment, broken engagements and repudiation. The Bavarian articles on abortion are not in the same title as the articles on poisoning, as in Visigothic law, cf. chapter 1, note 15. The Bavarian article on attempted poisoning is in the title on ‘wounds’ (title 4) (LBai 4.22). Cf. chapter 1, note 78. 75 The article-titles between brackets quoted below were taken from the list of titles. 76 Von Schwind 1926, pp. 361-362; ‘LBai 8.18. [Concerning an abortion by a potion.] If any woman provides a potion in order to induce an abortion, if she is a maidservant, she should receive 200 lashes, and if she is a freewoman, she should lose her freedom and be given in slavery to whomever the duke orders’ (Rivers 1977, p. 141; emended translation). 77 Morsak’s remark: “Das alte Kompositionssystem kann die ‘Eigenabtreibung’ ja auch nur als straflose ‘Selbstverstümm- lung’ begreifen” (Morsak 1977, p. 202) is, I think, a bit anachronistic. 78 LBai 4.22. [De potione mortifera.] Similiter qui potionem huiusmodi donaverit alicui in quo mortiferum esse dinoscitur, quamvis parvum sit aut multum: si evaderit, cum XII solđ conponat (Von Schwind 1926, pp. 330-331); ‘LBai 4.22. [Con- cerning fatal potions.] Likewise, whoever gives someone a potion of the type in which is to be found a fatal poison, whether it is a small or large amount, if he [the latter] escapes with his life, let [the poisoner] compensate with twelve solidi’ (Rivers 1977, p. 133). The Bavarian law on poisoning seems to be based on the Roman LCSV. The fine for attempted murder by poisoning (12 solidi) is the fine for a serious, non-negligible injury, but only a fraction of the wergeld (160 solidi) cf. chapter 1, note 84. Part 2: Chapter 1 344

nant women with abortifacient potions was women’s business, and that both free women and slave women apparently knew recipes for abortifacients. Three of the Bavarian articles on violent abortion were also modelled on Visigothic law. LBai 8.19 states that if the violence results in the death of a pregnant free woman, her wergeld must be paid.79 LBai 8.19. [Vario modo dicit de avorso.] Si quis mulieri ictu quolibet avorsum fecerit, si mulier mortua fuerit, tamquam homicida teneatur. Si autem tantum partus extinguitur, si adhuc partus vivus non fuit, XX solđ conponat. Si autem iam vivens fuit, weregeldum persolvat L et III solđ et tremisse [desunt].80

The phrase ictu quolibet, ‘through any kind of blow’, in LBai 8.19 indicates that the miscarriage could have been caused by domestic violence, an attack by a third party or simply getting caught up in a fight or a brawl (cf. LV 6.3.2).81 The title in the title list - vario modo dicit de avorso - implies that various violent methods of abortion were punished under this article. LBai 8.22. [De debilitate avorsi.] Si vero ancilla a quacumque persona debilitata fuerit, ut avorsum faceret, si adhuc vivus non fuit, IIII solđ conponat. LBai 8.23. [De avorso ancillae ut supra.] Si autem iam vivus, X solđ conponat, ancillae domino reformentur.82

LBai 8.22 describes the violence done to the ancilla with the term debilitata, ‘wounded, ill-treated, man-han- dled’. The term is a reference to the injury tariffs in the title on wounds (title 4), and it implies that additional injuries sustained by the pregnant woman must be compensated according to the injury tariffs. Bavarian law also stipulates that loss of the fetus must be compensated. As in its Visigothic source, the Aristote- lian abortion criterion is employed. Again, substantial emendations were made. Instead of using the criterion ‘formed’ - ‘unformed’, Bavarian law chose the terms vivus - non vivus, ‘alive - not yet alive’, to distinguish between late term and early term abortion.83 The compensation due for causing early term abortion in a free woman is twenty solidi, the fine for a relatively serious injury.84 If, however, the fetus was alive before the miscar-

79 In Bavarian law the wergeld for a free woman (LBai 4.29) is twice the amount for a free man (LBai 4.28), that is, two times 160 solidi. As in Visigothic law, a distinction is made between a free woman (LBai 8.19) and an ancilla (LBai 8.22 - LBai 8.23). However, Bavarian law does not distinguish between the various actors that did the violence, as Visigothic law does, cf. Elsakkers 2003a, p. 58, table 1. It simply speaks of quis (LBai 8.19) or a quacumque persona (LBai 8.22), so that all possible actors are included. [article II] 80 Von Schwind 1926, pp. 362-363; ‘LBai 8.19. [Various methods of abortion.] If anyone causes an abortion in a woman through any kind of blow, he should be considered a murderer, if the woman dies. If, however, only the child is killed, and if moreover the child was not alive, let him compensate twenty solidi. If, however, it was already living, let him pay the wergeld [that is] 53 solidi and one tremissis’ (Rivers, p. 141, emended translation). Eckhardt 1934b, p. 123 translates vivus as ‘lebensfähig’. 81 Morsak suggests that abortion by assault is a male crime: “Begrifflich denkbar ist hier nur ein männlicher, freier oder unfreier Täter” (Morsak 1977, p. 203), and he goes on to imply “verbrecherische Wille des Handelnden” for the guilty parties mentioned in LBai 8.18 and LBai 8.19. Morsak interprets potionem dare in LBai 8.18 as “bösen Absicht des Täters”, that is, intentional poisoning. I think that - in most cases - the female supplier of the abortifacient was trying to help the pregnant woman at her request (as in the Visigothic source of LBai 8.18, that is, LV 6.3.1). That the abortifacients provided were often dangerous poisons is exactly what the laws that forbid supplying poisons and abortifacients warn against. 82 Von Schwind 1926, p. 365. ‘LBai 8.22. [Concerning an abortion by ill-treatment] If, however, a maidservant is injured by any person so that [this person] causes an abortion, if moreover it [the fetus] was not alive, let him compensate with four solidi’ (Rivers, p. 142; emended translation). ‘LBai 8.23. [Concerning an abortion in a maidservant, as above.] If, however, it was already living, let him compensate with ten solidi; [the compensation] must be paid to the ancilla’s master’ (Rivers, p. 142; emended translation). Rivers’s translation of reformentur, ‘let the maidservant be returned to her lord’ must be rejected. Eckhardt translates: ‘der Herrin der Magd sollen sie erstattet werden’ (Eckhardt 1934b, p. 123). 83 Vivus probably refers to the pregnant woman’s awareness of her child moving in the womb. It is possible to interpret vivus as ‘alive at birth’ and non vivus as ‘stillborn’ as in Alamannic law (PLA 12, LA 70). However, I think the phrase si autem iam vivus implies that different stages of fetal development were meant. 84 The compensations mentioned for causing an ancilla to abort in LBai 8.22-8.23, four solidi, if the fetus was not alive (LBai 8.22), and ten solidi, if it was alive (LBai 8.23) are therefore certainly not negligible fines. Part 2: Chapter 1 345

riage, Bavarian law demands a wergeld of 53 solidi plus one tremissis, thus punishing late term abortion as murder, and not as a serious injury to the mother, as in Visigothic law. Bavarian law apparently regarded a fetus that ‘was already alive in the mother’s womb’ as a person, a murdered family member. LBai 8.20 and LBai 8.21 supplement the articles on violent abortion discussed above.85 LBai 8.21 introduces the Christian notion ‘ensouled’ - apparently as a synonym of ‘vivus’ (LBai 8.19, 8.22, 8.23). It seems to distinguish between a fetus with and without a soul. LBai 8.21. [De diuturna dolore parentum] Propterea diuturnam iudicaverunt antecessores nostri conpositionem et iudices, postquam religio christianitatis inolevit in mundo, quia diuturnam postquam incarnationem suscepit anima, quamvis ad nativitatis lucem minime pervenisset patitur poenam, quia sine sacramento regenerationis avortivo modo tradita est ad infer[n]os.86

Postquam incarnationem, that is, ‘after having acquired flesh’, ‘after incarnation’ or ‘after embodiment in human form’ refers to formation, the stage when the fetus starts to look like a human being.87 According to Chris- tian teachings this is the stage when the soul is infused into the body.88 A formed and ensouled fetus is a person, and abortion is therefore murder. Because the child could not be baptized, it will suffer eternal punishment in hell, and never be able to enter heaven or be reunited with its parents on Judgement Day. LBai 8.20 demands a fine of twenty solidi and a yearly fine of one solidus to be paid each autumn during seven generations by the person who caused the miscarriage and his family. LBai 8.20. [De conpositione avorsi perpetrati.] Si avorsum fecerit, inprimis XII solđ cogatur exsolvere. Deinde ipse et posteri sui per singulos annos, id est autumnus, singulum solidum solvant usque in septimam propinquitatem de patre in filios. Et si neglectum unius anni fecerint, tunc iterum XII solđ solvere cogantur et deinceps ordine praefato, donec series rationabilis impleatur.89

This yearly fine for breaking the peace must have been devised to stop the murder feud between the family and relatives of the victim of violent abortion and the family of the guilty party. Neither LBai 8.20 nor LBai 8.21 has a Visigothic counterpart. The former is a provision to stop feuding, and the latter adds a Christian interpretation of the criterion ‘vivus’, and describes the fate of an aborted fetus. It implies that there is more cause for grief, be-

Twelve solidi is awarded for a serious, not negligible, injury, such as bashing a person’s head in so that the brain appears (LBai 4.6), or cutting off a person’s thumb (LBai 4.11). Twenty solidi is the fine for causing a serious injury, such as crippling a person (LBai 4.10) or cutting off a person’s ear (LBai 4.14). Forty solidi is awarded for very serious, mutilating injuries, such as cutting off a person’s ear plus causing deafness (LBai 4.14), knocking out an eye, or cutting off a hand or a foot (LBai 4.9). In general the compensation (wergeld) for the murder of a freed man (cf. LBai title 5) is set at a quarter of the compensation of a free man (cf. LBai title 4.28; 160 solidi) and the compensation for a slave at an ⅛ (cf. LBai title 6). For a free woman double the amount of wergeld must be paid (LBai 4.29). 85 Siems suggests that LBai 8.20 and LBai 8.21 were later “eingeschoben” (Siems 1978, Sp. 1891). 86 Von Schwind 1926, p. 364; ‘LBai 8.21. [Concerning the long-lasting grief of parents] Therefore our ancestors and the judges decreed a long-lasting compensation - after the Christian religion became established in the world - because a soul - after it received flesh, even if it did not reach the light of birth at all - suffers long-lasting punishment, because without the sacrament of regeneration [baptism] - due to the abortion - it [the soul] is delivered to hell’ (Rivers, pp. 141-142; emended translation). 87 Cf. Elsakkers 2008. [article IX] 88 Note that LBai 8.21 seems to imply that the soul receives flesh (a body) instead of the other way around: postquam incarnationem suscepit anima, ‘a soul after it received flesh’, cf. also Eckhardt’s translation: ‘(…) weil die Seele, nachdem sie die Fleischwerdung empfing, wiewohl sie keineswegs zum Lichte der Geburt gelangte, eine ewige Strafe erduldet, da sie ohne das Sakrament der Wiedergeburt auf dem Wege der Fehlgeburt der Hölle übergeben worden ist’ (Eckhardt 1934b, p. 123). A few manuscripts have animam instead of anima, so that it is possible that postquam incarnationem suscepit animam, ‘after incarnation it [the fetus] receives the soul’ was meant, which makes more sense - that is, unless this law presupposes a soul without a body that later receives human form (cf. Von Schwind 1926, p. 364). 89 Von Schwind 1926, pp. 363-364; ‘LBai 8.20. [Concerning the composition for having caused an abortion.]. If a person causes a miscarriage, in the first place let him be compelled to pay twelve solidi. Then let him and his posterity pay a single solidus each year, that is, in the autumn, until the seventh generation from father to son. And if they neglect this in one single year, then let them be compelled to pay twelve solidi again, and after that follow the arrangement described above until the numbered sequence is completed (proper number of payments)’ (Rivers 1977, p. 141; slightly emended translation). Eck- hardt 1934b, p. 123: ‘bis die ordnungsmäβige Anzahl erfüllt ist’. Part 2: Chapter 1 346

cause the child that is mourned will go to hell and not have a chance of attaining salvation. LBai 8.21 reinforces LBai 8.20, and it demonstrates the influence of the Christian church on secular law. Both articles were obvious- ly issued in order to discourage violence that could lead to involuntary abortion. Most of the Bavarian abortion laws were derived from Visigothic law. Both violent abortion and supplying abortifacients are punished. However, substantial changes were made. Two articles were added, and a different abortion criterion was used. Two changes stand out, one is the fact that late term abortion is punished as murder, and the other is the absence of a provision that punishes intentional abortion by the mother, an omission that seems to be in strange contradiction with LBai 8.21, because this article describes the fate of aborted fetuses. The changes in the Visigothic laws are significant, and it is hard to believe that they were not the result of deliberate editing by Bavarian lawyers.90 Bavarian law shows us that women must have been familiar with abortion as a method of family planning, even though the Christian church was against it, and even though people knew abortifacient potions were dangerous. LBai 8.18 indicates that abortion and abortifacients were women’s business.

THE LAWS OF THE GENTES ULTRA RHENUM ON ABORTION The oldest written laws of the Chamavian Franks (Lex Francorum Chamavorum), Saxons (Leges Saxonum), Thuringians (Lex Thuringorum) and Frisians (Lex Frisionum) were probably ‘given’ to them in the early 800s by their conqueror Charlemagne as a means to assert his authority over them.91 At this time all four Germanic tribes were living in northwestern Europe outside the ancient Roman limes, but under Carolingian rule. The main subjects dealt with in these laws are criminal law (violence, murder, injury tariffs, etc.), property law and procedural law. Women are mentioned as crime victims, in connection with mundium (‘guardianship’), inheritance, marriage, fornication, abduction, rape and murder, but they are rarely mentioned as the perpetrator of a crime.92 The laws of the gentes ultra Rhenum do not contain any articles on poisoning or (violent) abortion. The Lex Thuringorum is the only law that associates women with poisoning in an article that forbids women from using poison (veneficium) to kill their husbands (LThur 52).93 The Lex Frisionum has an interesting provision that condones early infanticide by the mother and reminds us of the articles on violent abortion and early infanticide in the Salic, Ripuarian and Alamannic laws.94 LFri 5. De hominibus qui sine compositione occidi possunt.

90 For instance, changing cui iusserimus (LV 6.3.1) into cui dux iusserit (LBai 8.18) seems to be an emphatic assertion of the authority of the Bavarian dux, under whose auspices these laws were probably compiled. 91 For editions, cf. Sohm 1875-1889, pp. 269-288 (Lex Francorum Chamavorum); Von Richthofen & Von Richthofen 1875- 1889, pp. 1-102, Boretius 1883, pp. 68-70, pp. 71-72 and Von Schwerin 1918, pp. 15-49 (Leges Saxonum); Von Richthofen 1875-1889, pp. 103-144, and Von Schwerin 1918, pp. 57-66 (Lex Thuringorum); Von Richthofen 1863, pp. 631-711 (Lex Frisionum), and http://bsbdmgh.bsb.lrz-muenchen.de/dmgh_new/ (last accessed December 8, 2009). For translations, cf. Eckhardt 1934c (all four laws) and King 1987, pp. 205-208; 230-232 (Saxon capitularies). On these laws, see also: Algra 2000, Schmidt-Wiegand 1978a, 1978b, 1978c, 1978d, Reuter 1991 and Siems 1978, 1980. 92 The laws of the gentes ultra Rhenum on abduction and rape - one of the reasons a woman might resort to intentional abortion, but a reason that is not mentioned in any of the Old Germanic abortion laws - are discussed in Elsakkers 1999. [article V] 93 LThur 52 (55). Si mulier maritum veneficio dicatur occidisse vel dolo malo ad occidendum prodidisse, proximus mulieris campo eam innocentem efficiat aut, si campionem non habuerit, ipsa ad VIIII vomeres ignitos examinanda mittatur (Von Schwerin 1918, p. 65, Von Richthofen 1875-1889, pp. 139-140); ‘LThur 52 (55). Wenn ein Weib bezichtigt wird, den Gat- ten durch Vergiftung getötet oder durch Arglist der Tötung preisgegeben zu haben, tue des Weibes Nächster sie durch Zwei- kampf als unschuldig dar, oder sie werde, wenn sie keinen Kämpfer hat, selbst zur Probe über 9 glühende Pflugscharen ge- schickt’ (Eckhardt 1934c, p. 45). 94 Cf. chapter 1, note 99. Part 2: Chapter 1 347

LFri 5.1. (…) et infans ab utero sublatus et enecatus a matre; LFri 5.2. et si hoc quaelibet foemina fecerit, leudem suam regi componat, et si negaverit, cum 5 iuret.95

LFri 5.1 exempts a Frisian mother who kills her child right after it is born from paying the wergeld. LFri 5.2 states that if any other woman (a non-family member) kills the neo-nate, she must pay her wergeld to the king. It was apparently the right of a Frisian mother (and her family?) to decide whether or not her child was to be reared.96 Altfrid’s Vita Liudgeri, an early ninth-century biography of saint Liudger (742-809), contains a reference to this custom.97 It relates the story of how Liudger’s great grandmother tried to drown the baby girl who was later to become Liudger’s mother, Liafburg, right after she was born, because her mother had again given birth to a girl instead of a boy. The Vita states that the mother-in-law was exercising her right to kill a newborn before its first feeding, quia sic mos erat paganorum, ut si filium aut filiam necare voluissent, absque cibo ter- reno necarentur, ‘because thus was the custom of the pagans that if they wanted to kill a son or a daughter, they could be killed [if they were still] without earthly food’ or mother’s milk.98 Liafburg was fed in time, and went on to become the saint’s mother. Like the Salic, Ripuarian and Alamannic laws on early infanticide this early Frisian law defines a period during which a newborn infant is not yet considered a full family member, and not yet protected by the wergeld, if its mother decides that it should not live.99 Like the Ripuarian and Alamannic laws, these ‘karolingischen Stammesrechte’ seem to be deficient in many respects. Important laws, such as the laws on violent abortion and poisoning are missing, except in one Thurin- gian law that punishes women who poison their husbands. Obvious details, like the amount of wergeld due, are often omitted. This information was probably known through other sources, which means that these laws must have been used in conjunction with Salic law and older, oral customary law.100 So, although neither (violent) abortion nor abortifacients are mentioned in the early ninth-century laws of the Chamavian Franks, Saxons, Thuringians and Frisians, this is not to say that there was no (oral) legislation on the subject in use.

95 Von Richthofen 1863, p. 663; ‘LFri 5. Von den Menschen, die ohne Buße getötet werden können. LFri 5.1. (…) und das Kind, das nach dem Austritt aus dem Mutterleib von der Mutter getötet wird. LFri 5.2. Und wenn dies aber eine andere Frau tut, büße sie ihr Manngeld dem Könige, und wenn sie leugnet, schwöre sie mit 5’ (Eckhardt 1934c, pp. 74-77); for a Dutch translation, cf. Algra 2000, p. 148. The word enecatus, ‘killed, destroyed’, is interpreted as ‘strangled’ or ‘drowned’ by some editors. See: Niederhellmann 1983, pp. 128-130, especially note 37 (p. 128) and Siems 1980, pp. 334-338 on the various interpretations of LFri 5.1. Riddle’s translation seems to be somewhat hasty and impulsive: ‘infants who were snatched from the womb and murdered by the mother’ (Riddle 1992, p. 110). 96 Apparently the mother was allowed to smother or drown weak and sickly, and perhaps also unwanted, babies. 97 Pertz 1829, pp. 403-419, see also: http://bsbdmgh.bsb.lrz-muenchen.de/dmgh_new/ (last accessed December 9, 2009). 98 Pertz 1829, nr. 6, p. 406. See also: Halbertsma 1984, p. 28, and Senger 1959, p. 6. 99 In the Lex Frisionum and the Vita Liudgeri this period is linked to the child’s mother and its first taste of food. Salic, Ri- puarian and Alamannic law define it as ‘before it has a name’ or ‘within eight or nine days or nights after birth’ (PLS 24.6, 41.20, LS 31.3, LRib 40.10, PLA 12, LA 70). Alamannic law links the period to violent abortion and states that, if the child is born alive after the violent miscarriage, but dies soon afterwards, the guilty party is still punished for violent abortion. The same period is defined in a Visigothic law that deals with the death of a baby and its inheritance (LV 4.2.18). LFri 5.1 gives the mother the right to kill her newborn child directly after birth - perhaps because the child was sickly, deformed, retarded, disabled, the wrong gender, or simply unwanted. This Frisian law can be interpreted as a practical and perhaps even a com- passionate law, because it offers the mother the possibility of gently and swiftly sending a weak child ‘to its maker’. The main difference between these four laws is that LFri 5.1 is about intentional infanticide, and that LFri 5.2 and the Salic, Ri- puarian and Alamannic articles are about early infanticide caused by violence and committed by an outsider, that is, a person not authorized to interfere with the child’s life. See also: chapter 1, notes 46 and 56 and Niederhellmann 1983, pp. 124-130. It is possible that this short period of relative ‘lawlessness’ for the newborn baby defined in these four laws has to do with the high rate of infant mortality, and that acknowledging a child as a member of the family or tribe was postponed until the parents were convinced that it would survive. We find the same custom in ancient Rome where the dies lustricus or the day of purification, that is, the day the child receives a name, was more important than its birth-day (Carroll 1997, p. 172 e.a.). 100 See, for instance, title 5 of the Additio Sapientum in the Lex Frisionum (Von Richthofen 1863, p. 693, Eckhardt 1934c, p. 121), which awards compensation for killing a woman iuxta conditionem suam, ‘gemäß ihrem Stande’, without mentioning the amount of wergeld. The Saxon Capitularies occasionally refer to ewa Saxonum, ‘the laws of the Saxons’, and the Leges Saxonum explicitly refer to earlier Saxon law on more than one occasion - references which can only be interpreted as references to oral customary law, cf. Elsakkers 1999, passim. [article V] Part 2: Chapter 1 348

OLD GERMANIC LAW IN THE VERNACULAR Although Latin was the language of literacy, many of the Germanic codes betray their oral heritage. The Salic, Ripuarian, Alamannic, Bavarian and Lombard laws all contain glosses in the vernacular that were added in order to clarify the Latin text. The most famous are the so-called Malberg glosses in the Salic laws. The Anglo- Saxons and Frisians went one step further and wrote their laws down in the vernacular.

Anglo-Saxon Law The Anglo-Saxons were the first Germanic tribe to write their laws down in the vernacular. The earliest Old English laws, the laws of king Aethelbert of Kent, date back to the late sixth or early seventh century. Many of Aethelbert’s successors also issued laws in the Old English vernacular.101 As we saw above, Old Germanic laws that prohibit (supplying) abortifacients are usually mentioned in combina- tion with general laws on poisoning. Strangely enough, there do not appear to be any general Old English laws on poisoning. By inference this also leaves us without an Old English law that explicitly prohibits (supplying) abortifacients.102 This, of course, does not mean that poisoning or supplying abortifacients was condoned. Both were probably punished under the laws on injuries. Old English law does explicitly condemn abortion by assault. Violent abortion is punished in two different articles in the West Saxon king Alfred’s (c. 848-899) Domboc. Both Old English condemnations are, as in Visigothic law, linked to the biblical law in Exodus - in this case the Vulgate.103 The first is Alfred’s translation of the Vulgate version of Exodus 21: 22-23. We find it in the prologue to his law book, which incorporates a translation of “the best part of chapters 20 to 22 of Exodus”.104 Ælfred, Domboc, Prologue (Af El.) [El. 18]. Gif hwa on cease [caeste] eacniende wif gewerde [gewyrde], [ge]bete þone æwerdlan [æwyrdlan], swa him domeras gereccen [getæcan]. Gif hio dead sie, selle [sylle] sawle wið sawle.105

Alfred’s Old English translation of the Mosaic law differs from the eleventh-century translation in abbot Aelfric’s (c. 955- c. 1010) Heptateuch, even though both are based on the Vulgate. Ælfric, Heptateuch Exodus 21: 22-23. Gif men sacað and hwilc slicð eacniende wif and hig [hi] bearnlease gedeð, and heo alyfað, bete swa micel swa þæs wifes wer girnð and deman tæcan (tæcon). Gif hit swa ne bið, and heo æfter þam dead bið, sylle lif wið life.106

101 For editions and translations of Old English law, cf. Liebermann 1903-1916, Attenborough 1922, Robertson 1925 [1974], Eckhardt 1958, Whitelock e.a. 1981, vol.1.1, Lehman 1985 and Oliver 2002. On Old English law, see also: Richards 1986, Kaufmann 1971, Dammery 1994, Wormald 1999a and Wormald 1999b. 102 Old English laws that might qualify as condemnations of poisoning are discussed in Elsakkers 2010, forthcoming. [article VIII] 103 The Visigothic law on violent abortion was based on the Vetus Latina (Septuagint) version of Exodus 22: 22-23, cf. Elsakkers 2005. [article III] 104 Wormald 1999a, p. 419; on the Domboc, see also: Wormald 1999a, pp. 264-285, 416-429. On the introduction to Alfred’s Domboc and its probable or presumed sources, cf. Liebermann 1908, Fournier 1909, Treschow 1994, Wormald 1999a and Carella 2005. 105 Liebermann 1903 [1935], vol. 1, pp. 32-33. Ælfred, Domboc, Einleitung [El.18], ‘Wenn jemand bei einer Rauferei ein schwangeres Weib verletzt, so büsse er den Schaden, wie ihm die Richter zuerkennen. Wenn sie todt ist, gebe er Seele für Seele’. The version of Exodus 21:22-23 in the Liber ex Lege Moysi, one of the possible sources used by Alfred, is the same as the Vulgate text. Bryan Carella kindly sent me excerpts from the edition of the Liber he is preparing (email correspondence, June 2009). The version in the early twelfth-century Latin Quadripartitus translation also corresponds to the ‘standard’ version of the Latin Vulgate text: Ælfred, Domboc, Introduction, Quadripartitus, [El.18], Si rixati fuerint uiri, et percusserit quis mulierum pregnantem, et abortiuum quidem fecerit, sed ipsa uixerit, subiacebit dampno, quantum expetierit maritus mulieris et arbitri iudicauerint. Si autem mors eius fuerit secuta, reddat animam pro anima (Liebermann 1903 [1935], vol. 1, p. 33). See also: chapter 2 on the biblical law on abortion. 106 Marsdon 2008, p. 117 (Crawford 1922, p. 265); Ælfric, Heptateuch, Exodus 21: 22-23, ‘If men fight and someone hits a pregnant woman, and he causes a miscarriage, and she lives, he shall pay as much as the woman’s husband desires and the judges prescribe. If it does not happen this way, and she dies afterwards, he shall give life for life’. Part 2: Chapter 1 349

Compared to Aelfric’s translation Alfred’s version is a concise paraphrase. Alfred simplified the clause ‘if men fight, and hurt a woman with child’ to ‘if someone injures a pregnant woman during a caest (a ‘fight’ or ‘quar- rel’)’, whereas Aelfric translates ‘if men fight and someone hits a pregnant woman’. Both texts are concerned with accidental abortion; Alfred’s translation can also refer to domestic violence or a domestic fight in which the wife was also involved. Both versions follow the Vulgate regarding the death of the pregnant woman, and punish her death as murder. Aelfric renders animam pro anima as lif wið life, ‘life for life’. Alfred, on the other hand, chooses the word sawol, ‘soul’, and translates ‘soul for soul’, perhaps confusing the words animus, ‘(ra- tional) soul’, and anima, ‘breath of life, vital principle’, or perhaps purposely choosing the Old English word sawol because of its double meaning ‘soul, life, living being.’ The punishment for loss of the fetus is determined by the husband and the judges in the Vulgate. In Alfred’s version the fine is only set by the judges (swa him domeras gereccen); Aelfric’s version follows the Vulgate (bete swa micel swa þæs wifes wer girnð and deman tæcan). Both Old English versions of Exodus 21: 22-23 follow their Vorlage in considering loss of the fetus to be a serious injury to the mother. Again Alfred is concise. He does not explicitly mention the miscarriage; only the fact that the woman was injured. Aelfric uses the compound bearnleas, ‘childless’, to denote the miscarriage. The law on violent abortion in Alfred’s law book proper constitutes a further simplification of Exodus 21: 22- 23. It introduces the Old Germanic compensation for murder, the wergeld, and views the status of the fetus from a completely different perspective. Ælfred, Domboc (Af) 9 [10]. Be bearneacnum wife ofslægenum.107 9. Gif mon wif mid bearne ofslea þonne þæt bearn in hire sie, forgielde ðone wifman fullan gielde, 7 þæt bearn be ðæs fædrencnosles were healfan gelde.108

Instead of describing a situation of accidental miscarriage, Alfred now simply punishes killing a pregnant woman and her unborn child, using the Old English verb ofslean, ‘to kill, slay, strike (down)’ to denote the violence. Alfred’s law is a general condemnation of abortion by assault that can refer to domestic violence, homicide, or any other situation of violence - even intentional violence. Alfred changed the biblical punishment for murder - ‘life for life’ - into the payment of the wergeld. If the pregnant woman dies, her wergeld must be paid (fullan gielde). Loss of the fetus must be compensated with half the wergeld, ‘in accordance with the wergeld of the father’s family’, instead of the more arbitrary fine ‘according as the woman’s husband shall lay upon him’. By speaking of wergeld, even half the wergeld, Alfred’s secular law on abortion considers violently killing a fetus in utero to be murder, in contrast to the Vulgate version of Exodus 21:22-23 in Alfred’s prologue. This means that the fetus was considered to be a person in Alfred’s Domboc proper, and that violent abortion is no longer punished as an injury to the mother. This is interesting, because Alfred’s source was the Vulgate, and

107 The title is in Alfred’s list of titles, cf. Liebermann 1903 [1935], vol. 1, pp. 16-17. The title in the Quadripartitus version of Alfred’s Domboc reads: [9] De puero in matre occiso (Liebermann 1903 [1935], vol. 1, p. 17). 108 Liebermann 1903 [1935], vol.1, pp. 54-55; Eckhardt 1958, pp. 50-51; ‘Ælfred, Domboc, 9. If anyone slays a woman with child, while the child is in her womb, he shall pay the full wergeld for the woman, and half the wergeld for the child, [which shall be] in accordance with the wergeld of the father’s kindred’ (Attenborough 1922 [1974], pp. 68-69). Cf. Ælfred, Domboc, Quadripartitus, [9] Si femina pregnans occidatur, dum puer in ea sit, soluatur ipsa pleno gildo, et partus dimidio gildo secundum weram patris (Liebermann 1903 [1935], vol.1, p. 55). One of the Quadripartitus manuscripts substitutes matris for patris (sic), cf. Liebermann 1903 [1935], vol.1, p. 55, note 15. Part 2: Chapter 1 350

only Bible translations based on the Greek Septuagint punish abortion - that is, late term abortion - as murder.109 Alfred chose to fundamentally deviate from the Vulgate.110 This analysis of Alfred’s laws on violent abortion or abortion by assault leaves us with a problem. Why include two different articles on violent abortion in one and the same law book? And, if it was so important to Alfred to provide a historical background and a biblical justification for his laws, why was the biblical law so fundamentally altered? The answer can, I think, only be that Alfred’s law is a Christian law, and that Church law punishes violent abortion as murder and not as an injury. The Christian church teaches that the fetus - sometimes only the formed fetus - is considered to be a person or a potential human being, and that killing it would therefore be murder. In Old Germanic law murder is not punished with the death penalty, but with the payment of the wergeld, that is, a monetary compensation for the life that was lost; ecclesiastical law imposes a penance. Alfred’s message, as outlined in his prologue, seems to be that Christian Germanic society owes a debt to Mosaic law and that new standards (the fetus is a person) and old standards (wergeld) should be integrated into the biblical heritage.111 There is no indication in Old English secular law that the pregnant woman herself was punished for committing intentional abortion. However, supplying an abortifacient was probably punished under the laws on injuries. Violent or involuntary abortion is punished as murder; the death of the fetus must be compensated with half the wergeld of an adult. Although Alfred uses Old Germanic concepts such as wergeld, his inclusion of Exodus 21: 22-23 in the prologue to his Domboc shows us that he considered his law on violent abortion to be rooted in biblical law. Alfred chose to adapt the biblical law for his own intents and purposes, and this puts Old English law in a class of its own.

Late Medieval Old Frisian Law Late medieval Old Frisian abortion law consists of a remarkably extensive set of laws that were written in the vernacular and have come down to us in relatively young manuscripts dating from the thirteenth to the sixteenth centuries.112 The oldest laws probably date back to at least the eleventh century.113 According to tradition the Old Frisian Statutes and Landlaws may be even older, for it is said that they were ‘endorsed’ by or ‘given’ to the Frisians by Charlemagne. The written versions may therefore belong to the same period as the Lex Frisionum; the oral versions they were probably based on may be even older.114 The reputed age of Old Frisian law is the reason that articles VI and VII were included in this study of early medieval abortion.

109 Cf. chapter 2. 110 Just as he did in his rendering of Exodus 22:18, cf. Elsakkers 2010, forthcoming. [article VIII] 111 The reason Alfred added a translation of part of the book of Exodus was probably to provide his book of secular law with extra authority. The same is suggested by Liebermann: “All these contrasts between the Mosaic introduction and the English code he [Alfred] most likely meant to smooth away by the historic passage inserted between the two, according to which capital punishment, thanks to Christian mercy, had been limited to treason” (Liebermann 1908, p. 30). The passage referred to is in El. 49.7 (Liebermann 1903 [1935], vol. 1, pp. 44-47). 112 On the translation of Old Frisian law into Latin, see, for instance, Sytsema 1998. 113 For a chronology of Old Frisian abortion law and the dates of the manuscripts, cf. Elsakkers 2004, appendix 1, p. 140. For an extensive bibliography of late Old Frisian law, cf. Nijdam 2008 and Elsakkers 2004. [article VI] 114 Charlemagne’s endorsement of a set of important traditional and orally transmitted Old Frisian laws should probably be explained as a gesture of reconciliation towards the Frisians after conquering them. Part 2: Chapter 1 351

Old Frisian law does not explicitly punish poisoning or supplying abortifacients. The lack of laws on poisoning seems to be a strange omission in Old Frisian law.115 This does not mean that poisoning or supplying abortifacients was not punished under Old Frisian law. The Old Frisian injury tariffs are extensive, and there is no doubt that the negative effects of poisons and the often poisonous abortifacient drugs could easily be labelled as injuries that were punishable under the injury tariffs and even as attempted murder.116 It is also possible that there was ancient (oral) Old Frisian legislation on poisoning that is now lost. It is at any rate a very strange coinci- dence that Old Frisian and Old English law, both written down in the vernacular, lack explicit laws on poisoning. Intentional abortion using of abortifacient potions does not seem to be explicitly punished in the medieval Old Frisian laws that have come down to us.117 Old Frisian law contains a great deal of laws that punish violent abortion or abortion by assault. The oldest law, the twenty-third Landlaw, punishes violent abortion as murder, and demands double the amount of wergeld for loss of the fetus. The violence described in the various laws on abortion seems to indicate that it also included domestic violence. The Frisian landlaw on abortion was regularly supplemented and emended in the course of the medieval period. Besides a short and a long version of the twenty-third Landlaw, there are also short supplementary laws, called wends. The wends differentiate between early term and late term abortion, and define the difference using the Old Frisian abortion criterion, ‘hair and nails’. They allow women to initiate proceedings against the person who caused them to miscarry, and they also introduce female witnesses who have to determine the stage of development of the aborted fetus; later a priest was added to the list of witnesses. Early term abortion is punished as a relatively serious injury to the mother, and late term abortion is punished as murder - with payment of the wergeld. Besides secular law on abortion, the Old Frisian manuscripts also contain synodal or Church law on violent abortion. Synodal law does not differentiate between early term and late term abortion. Abortion is treated as a special case of murder of a nameless or unbaptized person, and it is punished as murder. In the course of the medieval period the fines for violent abortion in Old Frisian secular law were further differentiated. It seems as if the Frisians felt a need to further define the various stages of development of the fetus. This resulted in two different versions of a long law on violent abortion that defines four different stages of development of the fetus, each with its own compensation.118 In the early or mid-fourteenth century an Old Frisian embryological text was inserted in legal manuscripts near the articles on abortion as a kind of guideline to help determine the fine for abortion. The Old Frisian embryology is an adaptation of the embryology in the late fourth-century North African physician Vindicianus’s Gynaecia. It constitutes an emendation that brings Old Frisian abortion law more in line with Christian Augustinian definitions of early term and late term abortion. It adds an explanation of the ensoulment and vivification of the fetus in the fifth month, and, if read together with the Old Frisian long laws, late term abortion is considered to be murder from the sixth month onwards, because payment of the full wergeld is required. The ‘hair and nails’ stage, which was pinpointed to the fifth month in Old Frisian law, is set in the eighth month in the Old Frisian embryology, and thus effectively ‘kalt gestellt’ as a

115 This observation was confirmed by Han Nijdam (email correspondence July 2006). The Codex Aysma contains article headings that suggest that poisoning and providing or using abortifacients were punished in the early sixteenth-century; the articles themselves were never filled in, cf. Elsakkers 2004, p. 138. [article VI] 116 On the Old Frisian injury tariffs, cf. Nijdam 2008. 117 Apart from the late medieval article headings in the Codex Aysma mentioned above (chapter 1, note 115), it is also possible that intentional abortion was punished under the laws on violent abortion, if these laws are reinterpreted, as suggested below. See also: Elsakkers 2004, pp. 137-138 on violent abortion and intentional abortion in Old Frisian law. [article VI] 118 Cf. Elsakkers 2004, table 1, p. 140. [article VI] Part 2: Chapter 1 352

criterion to distinguish between early term and late term abortion. The dividing line between early term and late term abortion is now ensoulment and vivification. The Old Frisian ‘hair and nails’ criterion is a unique criterion to distinguish between early term and late term abortion. Moreover, Old Frisian embyrology presented us with a beautiful description of ensoulment, movement and vivification (sa vntfeth hit tha sele and upriucht thene likoma and vntfeth thene om, ‘then it receives the soul, and it straightens its body, and it sucks in (receives) its [first] breath’). A fetus with ‘hair and nails’ is a complete human being up to its finger tips, the infant body is ‘finished’ even its extremeties, that is, its hair and nails. Usage of the archaic Old Frisian word fax for ‘hair’ in some of the Old Frisian legal texts (H1-H2.IX.19d) also indicates that this criterion must be extremely old. The Old Frisian article on injuring and assaulting a child andere bobbaburg, ‘in the bobbaburg’, (in manuscripts H1, H2 and F) has been variously interpreted in the past. One of the explanations of the word bobbaburg is ‘womb’. This caused some scholars to regard the bobbaburg article as an article on violent abortion.119 In the manuscripts the bobbaburg article is followed by an article on involuntary abortion, which should be read as its companion article. In article VII a practical explanation of the word bobbaburg is given that accounts for the difference in compensation due in the bobbaburg article and the article on violent abortion that follows it. Bob- baburg is interpreted as a ‘baby sling’ or ‘baby carrier’ that can be used by the mother to carry around her young, unweaned baby.

119 Cf. Elsakkers 2003c, p. 106, note 5. [article VII] Part 2: Chapter 1 353

SUMMARY AND DISCUSSION As we saw above, Old Germanic law deals with abortion in connection with poisoning and violence. In legal texts the verbal phrase aborsum facere has two different meanings: ‘commit abortion’ and ‘cause an abortion or miscarriage’.120 The difference is usually obvious. Aborsum facere means ‘commit abortion’, when it refers to intentional abortion by the mother, and it means ‘cause an abortion’, when it has to do with involuntary and violent abortion. Aelfric translated aborsum facere as bearnlease gedeð, ‘make childless’, in his Old English version of Exodus 21: 22-23, an adequate and at the same time very concrete description of a miscarriage. Other Latin verbal constructions used to denote abortion are: partum effudere, partus (pecus) excutere, infantem (partuum) extinguere, partum interficere, filios in utero necare, infantem occidere, partitudinem laedere, and abortare compellere. Old Frisian does not seem to have a separate word or expression for ‘abortion’ or ‘miscarriage’. We find binna there benena burch en lif of(af)nima, thet bern and thiu berthe ofliue werthe, thruch tha morth case there binna there benena burch eden is and legal phrases like morth(case) clagia in secular law, and wrogia (wreia, biclagia) umbe ene unebinomat (binaemd) mord (moerd) in Church law. Expressions that have to do with birth and the birthing process are often used to denote abortion: fonre bernis berde, andere bernis berde, thet bern and thiu berthe ofliue werthe, tha berthe, fonre bernis berde, hiu(en frou) hire frucht urleren hebbe fon enre kase, hut andere berde sken se thet bern, bernwendene (berdwendene).121

Terms for ‘fetus’ The majority of the Old Germanic laws were codified in Latin, and they use the words partus, infans, pecus and filius in utero to denote the fetus in its mother’s womb.122 Old English law uses the vernacular word bearn for ‘fetus’, and Old Frisian law speaks of bern, lif and frucht. Old English bearn and Old Frisian bern have the meaning ‘fetus’ and ‘newborn baby’, thus indicating that the fetus was treated as a person; significantly, Old Frisian also uses the word lif (binna there benena burch), ‘life’, to denote the fetus. Most laws use the words partus and infans. As in other early medieval texts, the Latin words infans, filius, and filia have the double meaning ‘newborn child’ and ‘fetus in utero’.123 Chindasvind’s law uses both meanings of filius and filia (in utero) in one and the same law (LV 6.3.7). One suspects that he did this deliberately, because calling a fetus ‘a son or daughter in the womb’ might have a greater impact than the genderless and more abstract word partus, and thus help to drive home his message that abortion was murder and a form of infanticide and parricide. Occa- sionally the word ‘fetus’ is implied as in Lombard law, which has quod in utero eius, ‘that which is in her uterus’ (LLa-ER 334), and Alamannic law, which speaks of utrum vir an femina fuisset, ‘whether it would have been a boy or a girl’, and non fuit formatus, ‘it was not formed’ (LA 88.1 - LA 88.2). Table 1.3a presents an overview of the terms used for ‘fetus’ and ‘abortion’ in the Old Germanic laws.

120 See also: chapter 4. 121 Cf. Elsakkers 2004. [article VI] 122 We do not find the word conceptus in Old Germanic; it is occasionally used in the penitentials, see also: chapter 3. 123 We find the same double meaning of the word filius (‘newborn child’ and ‘fetus’) in Caesarius’s sermons (19.5. nec filios suos aut conceptos aut natos occidat) and in the penitentials, cf. chapters 2 and 3. Part 2: Chapter 1 354

Table 1.3a: Terms for ‘fetus’ and ‘commit abortion’ in early medieval Old Germanic law

OLD GERMANIC LAW ARTICLE FETUS ABORTION Latin Visigothic law LV 6.3.1 potionem ad aborsum/avorsum dederit potionem ad aborsum facere LV 6.3.2 abortare fecerit partus excutiatur formatum infantem extincxit LV 6.3.3 abortare conpulerit partum excusserit LV 6.3.4 aborsum fecerit partum effuderit LV 6.3.5 partum excusserit LV 6.3.6 partitudinem leserit abortare fecerit LV 6.3.7 filios suos in utero necant potionem ad avorsum acceperit filium filiamve in utero necaverit partuum suum extinguere Burgundian law ------Ostrogothic law ------Lombard law LLa-ER 75 infans in utero matris occisus fuerit quod in utero eius mortuum fuerit LLa-ER 334 avortum fecirit quod in utero eius mortuum est Salic law PLS 19.4 [H10] infans ut infantem habere non possit PLS 19.4 [C5, K] ut infantes habere non possit [contraception] LS 24.3 infans ut infantes habere non possit [contraception] PLS 24.6 infantem in uentre matris suae occiderit PLS 41.20 infantem in utero matris occiderit PLS 65.e.1 quod partus ille puer fuerit [occiderit] LS 31.3 infantem in utero matris sue occiserit III Mer.Cap. III.104.4 pecus non excutiat III Mer.Cap. III.104.5 pecus mortuum excusserit III Mer.Cap. III.104.8 infans puella est qui excutetur Ripuarian law LRib 40.10 partum in feminam interfecerit Alamannic law PLA 12 infans mortuos natus fuerit vivus natur fuerit LA 70 infans natus mortuus fuerit vivus natus fuerit LA 88.1 aborsum fecerit / abortivum fecerit utrum vir an femina fuisset LA 88.2 non fuit formatus LA 34 - epitome pregnanti mulieri aborsum fecerit si vir debuit esse, si femina Bavarian law LBai 8.18 potionem ut avorsum facerit LBai 8.19 avorsum fecerit partus extinguitur si adhuc partus non vivus fuit si autem iam vivens fuit LBai 8.20 avorsum fecerit LBai 8.21 avortivo [fate of the soul] LBai 8.22 avorsum faceret si adhuc vivus non fuit LBai 8.23 si autem iam vivus de avorso Chamavian law LCham ------Saxon law LSax ------Thuringian law LThur ------Early Old Frisian law LFri ------

Vernacular Anglo-Saxon law Alfred [El. 18] [eacniende] eacniende wif gewerde [Alfred omits: et abortiuum quidem fecerit] Alfred 9 bearne wif mid bearne ofslea Old English Bible translation Aelfric bearn bearnlease gedeð Late medieval Frisian law [various] bern lif ofnima, afliue werthe, tha morthcase ther binna there benena burch eden is OLD GERMANIC LAW ARTICLE FETUS ABORTION Part 2: Chapter 1 355

Fetal development Five Old Germanic laws distinguish between early term and late term abortion. The various abortion criteria are all ultimaltely based on the Aristotelian criterion ‘formed’ - ‘unformed’ (cf. table 1.3b).124 Visigothic law differentiates between a ‘formed’ and an ‘unformed’ fetus (LV 6.3.2 - 6.3.6), Salic law uses gender distinction (PLS 65.e.1; Third Merovingian Capitulary III.104.5, III.104.8), and Alamannic law uses gender distinction and formation (LA 88.1 - LA 88.2).125 Bavarian law employs the criterion vivus - non vivus, ‘alive’ - ‘not (yet) alive’ (LBai 8.19, 8.22 - 8.23), and states that ensoulment occurs after formation (LBai 8.21). The relatively young Old Frisian laws use the age-old criterion her anda neylar, ‘hair and nails’, and late medieval Old Frisian law developed an intricate system of compensations for (almost) each month of fetal development. Gender distinction, the criterion vivus - non vivus, the hair and nails criterion, and even the criterion ‘formed’ - ‘unformed’ are more practical distinctions than the criterion ‘ensouled’ - ‘not yet ensouled’. The various legal perspectives on the ‘status of the fetus’ are discussed below under the headings ‘punishment’ and ‘status of the fetus’.

Table 1.3b: Fetal development

OLD GERMANIC LAW ARTICLE Terms for EARLY TERM - LATE TERM COMMENTS Latin Visigothic law LV 6.3.2 - LV 6.3.6 informatus - formatus formation

Salic law PLS 65.e.1 quod partus ille puer fuerit gender distinction Merovingian Cap. III.104.5 si quis uero pecus mortuum excusserit gender distinction Merovingian Cap. III.104.8 si uero infans puella est, qui excutetur

126 Alamannic law LA 88.1 ita ut iam cognoscere possis, utrum vir an gender distinction femina fuisset LA 88.2 si nec utrum cognoscere potest et gender distinction iam non fuit formatus in liniamenta corporis formation epitome LA 34 si vir debuit esse - si femina gender distinction

Bavarian law LBai 8.19 si adhuc partus vivus non fuit alive - not (yet) alive si autem iam vivens fuit LBai 8.22 si adhuc vivus non fuit alive - not (yet) alive LBai 8.23 si autem iam vivus LBai 8.21 postquam incarnationem suscepit anima[m] formation > ensoulment (ensoulment 127 >formation?) Vernacular Late medieval Frisian law short laws hit nebbe her nither neylar - formation of hair & nails hit hebbe her anda neylar long laws 1st to 6th month - 7th to 9th month time - number of months revised long laws lifheftech, neil and fax het (fifth month) - formation - sa meit ful kuma (6th to 9th month) potential viability Old Frisian Embryology 1st to 4th month (> kint ghebilethath) - formation - sa vntfeth hit tha sele and upriucht thene ensoulment, movement, likoma and vntfeth thene om vivification

OLD GERMANIC LAW ARTICLE Terms for EARLY TERM - LATE TERM COMMENTS

124 Cf. Elsakkers 2008. ‘Movement’ is not used as an abortion criterion in Old Germanic law; it is only mentioned in the Old Frisian Embryology. 125 Alamannic law uses the term vivus to distinguish between a child that is born alive and one that is born dead (PLA 12, LA 70). 126 The other Alamannic laws (PLA 12 and LA 70) only distinguish between a child that is born dead and a child that is born alive. 127 Cf. above and chapter 1, note 88. Part 2: Chapter 1 356

Punishment An important difference between Roman and Old Germanic law is that the former demands the death penalty for murder, and that the latter usually requires payment of the wergeld. Wergeld is the monetary value of a person’s life, and it is related to his or her gender, age and social status (free, half free or slave). The compensation due for injuries in Old Germanic law is derived from the wergeld. The wergeld differs in the various Old Germanic laws. This usually has to do with a difference in money standard, but it can also reflect a difference in the value put on a person’s life (cf. the wergeld for women in Salic law in the table below). Table 1.4a contains a list of the amounts of wergeld due for men, women and children in the various Old Germanic laws - if mentioned.

Table 1.4a: Wergeld in the various Old Germanic laws

OLD GERMANIC LAW ARTICLE WERGELD COMMENTS Latin Visigothic law LV 6.5.12; LV 6.5.17-18 e.a. death penalty treachery; murder of a blood relation LV 6.5.14 500 s. free man [usually death penalty] Burgundian law LB 2.2 300 s.; 200 s.; 150 s. nobleman; middle class, lowest ♂ [wergeld women not mentioned] Ostrogothic law ------Lombard law LLa-Liu 62 (cf. LLa-ER 14) 300 s. - 150 s. free landowner - free landless man LLa-ER 200-201 1200 s. free woman killed (deliberately) LLa-ER 75 ½ the mother’s wergeld fetus Salic law PLS 16.1, 17.1 62 ½ s. attempted murder of a man PLS 41.1 200 s. free Frankish man PLS 24.8, 41.16, 65e.3 600 s. free woman of child-bearing age PLS 41.15, 65e.2 200 s. young girl PLS 24.9, 41.17, 65e.4 200 s. woman past child-bearing age PLS 24.1, 24.4, 41.18 600 s. young boy under 12, long-haired man PLS 24.6, 41.20; LS 31.3 100 s. fetus; early infanticide Ripuarian law LRib 7 200 s. free man LRib 12.1 600 s. free woman of child-bearing age LRib 13 200 s. young girl LRib 13a 200 s. woman over forty LRib 40.10 2 x 50 s. fetus; early infanticide Alamannic law PLA 15 [ - ] woman LA 60.1 160 s. free man LA 60.2 320 s. free woman PLA 12, LA 70 12s., 24 s. fetus, stillborn baby, early infanticide LA 88.1 24 s.; 12 s. female fetus; male fetus LA 88.2 12 s. gender indistinguishable Bavarian law LBai 4.28 160 s. free man [freed man ¼; slave ⅛] LBai 4.29 320 s. free woman (twice wergeld free man) LBai 8.19 20 s. fetus not (yet) alive LBai 8.19 53 s. plus 1 tremis fetus alive (~ ¼ man’s wergeld) Saxon law LSax 14, -, 16 1440 s.; 240 s.; 120 s.; nobleman; free Saxon; half free man Early Frisian law LFri 1.9-1.10 50/53 s. & denarius; 100/106 s. free Frisian ♂♀; noble♂ or -woman Chamavian law LCham 3-4 200 s free man; wergeld ♀ not mentioned 128 Thuringian law LThur 1 600 s.; 200 s.; 30 s. nobleman; free man; slave LThur 49 86 s. plus 3 tremisses woman not yet of child-bearing age 600 s. woman of child-bearing age 200 s. woman past child-bearing age Vernacular Anglo-Saxon law Æthelbert 24 and 73 100 s. man or woman Alfred, Domboc 9 half the wergeld fetus 129 Late medieval Frisian law various various cf. Nijdam 2008

OLD GERMANIC LAW ARTICLE WERGELD COMMENTS

128 On wergeld in Saxon, Early Frisian, Chamavian and Thuringian law, cf. Elsakkers 1999, p. 33, note 18, p. 43, note 53, p. 47, note 66, p. 48, notes 69-71. LThur 48 gives the wergeld for noblewomen. [article V] 129 Nijdam 2008, p. 447 (CD-ROM). Part 2: Chapter 1 357

Punishment for poisoning, supplying and using abortifacients Poisoning is a serious crime. The Roman law on poisoning, the Lex Cornelia de Sicariis et Veneficis (LCSV), and its explanation in the Pauli Sententiae continued to be influential in the early medieval period, especially through the Breviarium Alarici. Roman law punishes supplying, selling, preparing and administering poisons with death, deportation and forfeit of property, whether the victim lives or dies, and it classes abortifacients as poisons. Most early medieval Germanic laws on poisoning seem to have been influenced by the Roman LCSV in some way. Visigothic law, Lombard law and Bavarian law have articles on poisoning that were clearly derived from Roman law. Burgundian and Ostrogothic law were influenced by Roman law, but neither has a law on poisoning of its own. In both cases the Roman LCSV and/or oral customary law were probably considered applicable. The most popular and at the same time the most important Old Germanic laws on poisoning are the laws of the Salian Franks. Their laws were more subtly influenced by Roman law. The Salic law code and its derivative, the Lex Ribuaria, have a simple law on poisoning that is reminiscent of the LCSV. The insertion of two examples of poison (hallucinatory drugs and abortifacients) in some recensions of Salic law may have been triggered by the examples of poisoning (aphrodisiacs and abortifacients) mentioned in the Sententiae Pauli. The Alamans, Saxons, Chamavian Franks, Thuringians and Frisians, Germanic tribes who lived in the more northern and central parts of the Frankish empire in the early medieval period, do not have laws on poisoning of their own. All five tribes have relatively short law codes with supplementary laws for special cases, like the Thuringian law on poisoning one’s husband (LThur 52). Salic law and/or oral Germanic customary law probably applied where these laws were deficient. The article on poisoning in Bavarian law seems to be based - at least in part - on Visigothic law. A lack of Old Germanic laws on poisoning does not mean that poisoning was not punished. It could easily be punished under the written laws on homicide (successful poisoning) and injuries (unsuccessful poisoning), or under oral customary law.130 This may be the way poisoning was punished in Old English and late medieval Old Frisian law, because both law codes also lack laws on poisoning. Old Germanic law requires payment of the wergeld or a nearly equivalent sum for poisoning that results in the death of the victim. If the attempt fails, most laws demand half the wergeld as composition.131 Only Visigothic law follows Roman law and punishes both attempted and successful poisoning with the death penalty. Aborti- facients are only mentioned explicitly in Visigothic, Salic and Bavarian law. All three laws prohibit providing a woman with a poisonous, abortifacient agent. The Roman-influenced Visigothic law is exceptionally severe, because it punishes providing an abortifacient potion with the death penalty regardless of whether the pregnant woman lives or dies. Salic law on poisoning punishes supplying abortifacients and contraceptives as attempted murder, and Bavarian law stipulates that the supplier should be enslaved or receive 200 lashes. The punishments for supplying an abortifacient seem to be strangely inconsistent, but they are all harsh. The harshness of the punishments implies that abortifacients were known to be poisonous, dangerous and potentially lethal substances. Old Germanic lawgivers were apparently not keen on allowing a third party to help a woman commit intentional abortion, that is, use poisonous substances to induce an abortion - often a dangerous, life-threatening, procedure.

130 PLS 57.1 has an interesting reference to oral customary law: Dicite nobis legem Salicam (Eckhardt 1962, p. 215), and as Wood says: “This suggests that there was unwritten law supposedly known by the rachinburgi, which was not contained in the Pactus Legis Salicae. That there is some discrepancy within the whole tradition of Salic Law is, therefore, not surpris- ing” (Wood 1994, p. 110). 131 Bavarian law deviates from the norm, because it demands only 12 solidi for attempted poisoning, the fine for a serious injury, but much less than half the wergeld (160 solidi). Cf. chapter 1, note 78. Part 2: Chapter 1 358

Although none of the other Old Germanic laws explicitly mention abortifacients (or any other anti-fertility drugs), it makes sense to assume that supplying these toxic drugs was punished under the early medieval laws on poisoning, even if the drugs are not mentioned explicitly.132 Late Roman, Visigothic, Burgundian and Ostrogothic divorce law may also contain a reference to supplying abortifacients.133 These laws allow a husband or wife to divorce his or her spouse for being a medicamentarius, -a, or maleficus, -a, that is, a ‘poisoner’ - ‘magician’. Because abortifacients were regarded as poisons, it is possible that these Romano-Germanic divorce laws not only referred to mixing poisons and/or working magic, but also to preparing abortifacients (or contraceptives). Visigothic law is the only Old Germanic law that punishes using an abortifacient (LV 6.3.1, LV 6.3.7). The punishment for a pregnant woman who asks for an abortifacient ranges from enslavement, 200 lashes or having her eyes put out to the death penalty. The fact that Visigothic law punishes the pregnant woman constitutes a significant departure from its Roman model. Moreover, we do not find this provision in any of the other Old Ger- manic laws. Even the Bavarian law that was based on Visigothic law omits this clause. To put it differently: Visigothic law is the only Old Germanic law that punishes intentional abortion by the mother. We can only guess why the Visigoths condemned intentional abortion at the request of the pregnant woman. Perhaps it was because the authorities wanted to protect women from endangering their lives by poisoning themselves (suicide) and putting the lives of their unborn children at risk. Or perhaps it was the influence of Christianity. Chindasvind’s law - issued more than a century after LV 6.3.1 was promulgated - indicates that the Christian church’s pro-life standpoint was influential. Table 1.4b lists the punishment for poisoning and supplying or using abortifacients.

Punishment for violent abortion The Old Germanic laws on violent abortion punish two different crimes: killing or injuring a pregnant woman and loss of the fetus. Cf. table 1.4c. Not all Old Germanic laws contain provisions on violent abortion. Ostrogothic, Burgundian, Chamavian, Thur- ingian, early Old Frisian, and Saxon law are deficient in this respect. In the case of the Ostrogoths and Burgun- dians Roman (vulgar) law or oral customary law on homicide and injuries was probably applicable, and as regards the other tribes Salic law or oral customary law was probably used. If a pregnant free woman dies from the violence inflicted upon her, the wergeld must be paid, even if this is not mentioned, as in Alamannic law. Visigothic law demands the punishment for ‘homicide’, that is, the death penalty (LV 6.3.2-6.3.6), and Alfred’s Old English paraphrase of Exodus 21: 22-23 in the introduction to his Domboc explicitly imposes the death penalty (Alfred, Domboc, El. 18). The Third Merovingian Capitulary demands an extra high compensation, if the woman dies. The wergeld (600 solidi) is increased with a fine of 300 solidi for committing violence (III.104.6). This capitulary is also the only law that explicitly compensates

132 Niederhellmann seems to disregard the fact that a lack of secular laws on abortion does not mean that there was no way of punishing intentional or violent abortion: “In den sächsischen, thüringischen und burgundischen Leges hingegen liegen weder Artikel vor, die die Abtreibung durch Gewaltanwendung eines Dritten behandeln, noch finden sich hier Titel hinsicht- lich der Eigenabtreibung. Letztere mochte man auch als Anliegen der christlichen Kirche ansehen, die sich in Synodalbe- schlüssen und Pönitentialen des frühen Mittelalters entschieden dagegen wandte. Denn der christlichen Dogmatik gemäβ waren der Fötus bzw. das neugeborene Kind nicht Eigentum der Sippe, sondern von Gott geschaffene mit individueller Seele begabte Lebewesen; derjenige, der sie durch Abtreibung oder Tötung vernichtete, stellte sich damit gegen das göttliche Ge- bot bzw. den Willen Gottes” (Niederhellmann 1983, p. 130). 133 Cf. table 1.1. Part 2: Chapter 1 359

violence towards a pregnant woman, even if no miscarriage occurs (III.104.4). If the pregnant woman survives the violence, her injuries must be compensated. Most of the laws implicitly or explicitly indicate that injuries must be compensated according to the injury tariffs. Words like debilitata, percutere and trabattere are references to the injury tariffs (Visigothic, Lombard, Salic, Bavarian law). The provisions on ‘loss of the fetus’ can be divided into two categories: (a) laws that differentiate between early term and late term abortion versus those that don’t, and (b) laws that treat loss of the fetus as a serious injury to the mother versus laws that treat loss of the fetus as murder or as a crime equivalent to or nearly equivalent to murder. These categories overlap. As we saw above, Visigothic, Merovingian (Salic), Alamannic, Bavarian and late Old Frisian law differentiate between early term and late term abortion. Early term abortion is punished as an injury to the mother that is considered to be just as serious as an amputation, except in the Merovingian Capitulary where an exorbitant fine is demanded (III.104.5). Late term abortion is punished as an injury to the mother that is equal to a major amputation in Visigothic and Alamannic law. Bavarian law, the Third Merovingian Capitulary, and late Old Frisian law punish it as murder. Bavarian law is the only law with a separate wergeld for a late term fetus. Old Frisian law demands the full wergeld (sometimes double wergeld), and the Merovingian Capitulary demands large sums that exceed the wergeld. The four other Old Germanic laws on violent abortion do not differentiate between early term and late term abortion: Salic and Ribuarian law punish violent abortion as a serious injury or amputation, and Lombard and Anglo-Saxon law require payment of half the wergeld.134 Use of the word wergeld in Lombard, Bavarian, Anglo-Saxon and Old Frisian law indicates that causing a miscarriage was considered equivalent to murder, even if the full adult wergeld is not required. In many Old Germanic laws the compensation for violent abortion is equal to the compensation for amputating a major limb, both in the laws that distinguish between early term and late term abortion and in those that don’t. In these laws the fine for causing a miscarriage is comparable to losing a hand, an arm or a leg. This indicates that the fetus was regarded as an important part of the mother’s body, but not as a person or an independent human being, as in the laws that use the word ‘homicide’ and demand the wergeld or the death penalty. The severe punishments for (late term) abortion in the various Old Germanic laws seem to indicate that abortion was also considered a major health risk to the pregnant woman.

134 Lombard law requires payment of half the mother’s wergeld for loss of the fetus, whereas the payment of half the wergeld in Anglo-Saxon law must be ‘in accordance with the father’s family’; see also: chapter 1, note 108. Part 2: Chapter 1 360

Table 1.4b: Punishment for poisoning, supplying and using abortifacients

ROMAN LAW ARTICLE PUNISHMENT COMMENTS INTENTIONAL ABORTION Latin Pauli Sententiae PS 5.23.1 deportation, death penalty, supplying, selling poison --- crucifixion (attempted and successful) PS 5.23.14 forfeit, deportation etc. abortifacient, woman lives supplying, death penalty aborticafient, woman dies administering Codex Theodosianus CTh 3.16.1 grounds for divorce intentional abortion?

Lex Romana Visigothorum BA 3.16.1 grounds for divorce intentional abortion? Breviarium Alaraci BA PS 5.25.1 deportation, death penalty, supplying, selling poison crucifixion (attempted and successful) BA PS 5.25.8 forfeit, deportation etc. abortifacient, woman lives supplying, death penalty aborticafient, woman dies administering Breviarium, interpretatio BA 3.16.1 grounds for divorce intentional abortion? Breviarium, epitomes BA 3.16.1 grounds for divorce intentional abortion? ROMAN LAW ARTICLE PUNISHMENT COMMENTS INTENTIONAL ABORTION

OLD GERMANIC LAW ARTICLE PUNISHMENT COMMENTS INTENTIONAL ABORTION Latin Visigothic law LV 6.2.2 torture, death penalty successful poisoning --- enslavement attempted poisoning --- LV 6.3.1 death penalty (victim lives/dies) supplying abortifacient supplying for enslavement, 200 lashes asking for an abortifacient intentional abortion LV 6.3.7 death penalty, put out eyes using abortifacient intentional abortion LV 3.4.13 enslavement poisoning, bewitching husband --- Burgundian law (LB, LRB) no laws on poisoning --- [Roman LCSV; BA] --- LB 34.3 grounds for divorce intentional abortion? LRB 21.2 - LRB 21.3 grounds for divorce intentional abortion? Ostrogothic law no laws on poisoning --- [Roman LCSV; BA] --- ETh 54 grounds for divorce intentional abortion? Lombard law LLa-ER 139 20 s. preparing a poison --- LLa-ER 140 half the wergeld attempted poisoning --- LLa-ER 141 wergeld successful poisoning --- Salic law PLS 19.1, LS 24.1 62 ½ s. (⅓ wergeld) attempted poisoning --- PLS 19.2, LS 24.2 200 s. (wergeld man) successful poisoning --- PLS 19.4, LS 24.3 62 ½ s. supplying a contraceptive supplying for and/or abortifacient intentional abortion Ripuarian law LRib 86.1 wergeld successful poisoning --- LRib 86.2 100 s. attempted poisoning --- Alamannic law no laws on poisoning --- [Salian law] --- PLA 13.1; PLA 14.1ff. herbaria is a term of abuse also anti-fertility drugs ? Bavarian law LBai 4.22 12 s. attempted poisoning --- LBai 8.18 enslavement, 200 lashes supplying an abortifacient supplying for intentional abortion Chamavian law LCham no laws on poisoning [Salian law] [oral law?] --- Saxon law LSax no laws on poisoning [Salian law] [oral law?] --- Thuringian law LThur no laws on poisoning [Salian law] [oral law?] --- LThur 52 duel, nine red-hot plowshares poisoning husband --- Early Frisian law LFri no laws on poisoning [Salian law] [oral law?] ---

Vernacular Anglo-Saxon law various no laws on poisoning [punished as an injury] --- [oral customary law?] Late medieval Old Frisian law various no laws on poisoning [punished as an injury] --- [oral customary law?] OLD GERMANIC LAW ARTICLE PUNISHMENT COMMENTS INTENTIONAL ABORTION Part 2: Chapter 1 361

Table 1.4c: Punishment for violent abortion

LOSS OF THE FETUS OLD GERMANIC LAW ARTICLE PREGNANT ♀ COMPENSATION FETUS SERIOUSNESS LOSS OF FETUS DIES Latin Visigothic law LV 6.3.2 (- LV 6.3.6)135 death penalty 100 s. (early term) fetus, serious injury (amputation) LV 6.3.2 (- LV 6.3.6) death penalty 150 s. (late term) formed fetus, very serious injury LV 6.3.7 --- death penalty murder Burgundian law ------Ostrogothic law ------Lombard law LLa-ER 75 (unintentional) wergeld ½ mother’s wergeld (free ♀) wergeld, murder LLa-ER 334 (ancilla) wergeld 3 s. slave fetus = minor injury to free man Salic law PLS 24.5 600 s. (wergeld♀) --- [plus 100 s. [200 s.] for the violence] PLS 41.19 600 s. (wergeld♀) PLS 65e.1 600 s. (wergeld♀) 600 s. if the fetus is a boy =wergeld young ♂ PLS 24.6 --- 100 s. [200 s.] serious injury (amputation) PLS 41.20 --- 100 s. serious injury (amputation) LS 31.2 300 s. LS 31.3 --- 100 s. serious injury (amputation) Mer. Cap. III.104.4 woman injured --- [200 s. compensation violence, injury] Mer. Cap. III.104.5 --- 600 s. (early term) fetus, sex not recognizable 600 s. ♂ (late term) male fetus (wergeld young boy) Mer. Cap. III.104.6 900 s. --- [= 600 s. wergeld ♀ + 300 s. compensation violence] Mer. Cap. III.104.7 1200 s. --- [woman under protection king] Mer. Cap. III.104.8 2400 ♀ (late term) female fetus, 12 x wergeld young girl Ripuarian law LRib 40.10 --- 100 s. fetus, serious injury (amputation) 600 s. 100 s. fetus, serious injury (amputation) Alamannic law PLA 12, LA 70 --- 40 s. fetus, serious injury (major amputation) LA 88.1-88.2 --- 12 s. (early term) fetus, injury (small amputation; (suppl. to PLA 12 - LA 70) thumb) ♂12 s. (late term) male fetus (small amputation) ♀ 24 s. (late term) female fetus (crippling injury) epitome LA 34 --- 20 s. (early term) fetus, injury (crippling injury) ♂12 s. (late term) male fetus (small amputation) ♀ 24 s. (late term) female fetus (crippling injury) Bavarian law LBai 8.19 wergeld 20 s. (early term) fetus not yet alive; serious injury 53 s. + 1 tremis (late term) fetus alive; wergeld fetus LBai 8.20 --- 12 s. injury, small amputation (thumb) plus 1 s. during seven generations LBai 8.21 ------fetus will go to hell LBai 8.22 (ancilla) 4 s. (early term) slave fetus not yet alive LBai 8.23 (ancilla) 10 s. (late term) already alive Chamavian law LCham ------Saxon law LSax ------Thuringian law LThur ------Early Frisian law LFri ------

Vernacular Anglo-Saxon law Ælfred, Domboc Intr. [18] soul for soul, as the judges decide death penalty Ælfred, Domboc 9 wergeld ½ wergeld father’s kin wergeld, murder 136 Late medieval Frisian law various laws wergeld (a) (double) wergeld or no fetal distinction as much as the people decide wergeld (ba) various (early term) relatively serious to serious injury 137 wergeld (bb) wergeld (late term) wergeld OLD GERMANIC LAW ARTICLE PREGNANT ♀ COMPENSATION FETUS SERIOUSNESS LOSS OF FETUS DIES

135 On articles LV 6.3.2-6.3.6, see: Elsakkers 2003, passim. [article II] 136 Cf. Elsakkers 2004, passim. [article VI] 137 Cf. Elsakkers 2004, p. 137 (table) for the various fines. [article VI] Part 2: Chapter 1 362

Motives - intentionality Motives for abortion are not mentioned in the Old Germanic laws. Sometimes motives are vaguely hinted at. For instance, the Visigothic, Salic and Bavarian laws that punish supplying abortifacients seem to indirectly suggest that women had reasons to ask for these drugs, and Chindasvind’s vehement plea against intentional abortion, implies that family planning or other family matters (an illegitimate child perhaps?) may be reasons why women resorted to abortion - sometimes even supported or egged on by their husbands. The laws on violent abortion do not mention any motives either. Their choice of words indicates that the miscarriage had something to do with (domestic) violence, or (accidentally) getting caught up in a brawl or fight, like the one described in Exodus 21: 22-23, but that is all. Lombard law is the only law with a provision on violent abortion that explicitly states that the miscarriage was not intentional, but accidental, an unfortunate result of the woman’s injuries. It uses the word nolendo, ‘unwillingly’. This brings us to the question of intentionality. Violent abortion is by definition involuntary from the pregnant woman’s point of view. It is, of course, possible that some of the miscarriages described in the Old Germanic laws could be explained as accidental from the standpoint of the aggressor. The laws on poisoning and abortifacients are concerned with intentional abortion by the mother. Morsak’s suggestion that the Bavarian law on providing abortifacients refers to involuntary abortion, and that it punishes the third party who (secretly?) administered an abortifacient potion to a pregnant woman (potionem ut avorsum faceret dederit), is an extremely remote possibility, but certainly not the first interpretation that springs to mind (LBai 8.18).138 The phrase potionem dedere is used in many of the laws, and it refers to those who supply the (abortifacient) drugs, as in the Vorlage of the Lex Baiuvariorum, the Lex Visi- gothorum, where it is followed by the passage that punishes the woman who asked for the drug. Supplying an abortifacient or asking for one implies intentionality on the part of the pregnant woman who ordered the drug.

138 Cf. Morsak 1977, pp. 204 and chapter 1, note 81. Part 2: Chapter 1 363

Methods Two ‘methods’ of abortion are mentioned in Old Germanic law: taking an abortifacient potion (table 1.5a) and violence (table 1.5b). Information on the abortifacients or how the violence was committed is scarce. Abortifacients were administered in potions. That much is clear from the repeated use of the noun potio and the verb bibere in the articles on poisoning and anti-fertility agents. The words used to denote ‘poison’ are maleficium, venenum, veneficium and herba. The three laws that actually mention abortifacients speak of potio ad avorsum, potio ut avorsum faceret (Visigothic, Bavarian law) and maleficium or herbas that are given ut infantem (infantes) habere non possit, which can include contraceptives (Salic law). Only Salic law tells us that the ingredients of the potions were herbs, because it uses the word herba as a variant of the word maleficium. The notoriously ambiguous words maleficium and veneficium - both denote ‘poisoning’ and ‘magic’ - are used in some of the laws on poisoning, and sometimes there is or seems to be a connection with magic, as in PLS 19.3.139 A link between (poisonous) herbs and magic is suggested in Alamannic law, where a series of articles on terms of abuse for women indicates that herbariae, ‘female herbalists’, were associated with herbcraft, magic and witchcraft. Perhaps the fact that the way poisons and abortifacients work is inex- plicable to the uninitiated was the reason for their association with magic. On the other hand, it seems as if the effects of the dangerous herbal concoctions forbidden in the various laws on poisoning were well-known. Bavarian law on poisoning speaks of a potio mortifera, ‘a deadly potion’ (LBai 4.22) and Ripuarian law describes the serious effects poison can have on the victim’s health, if he or she survives: et varietatem seu debilitatem probabile ex hoc in corpus habuerit (LRib 86.2). Both Roman and Old Ger- manic law on poisoning were apparently enacted in order to prevent murder and injuries. The toxicity of the herbal mixtures explains why abortifacients were classed as deadly poisons, and why they are explicitly or implicitly prohibited under the laws on poisoning. Miscarriage caused by (domestic) violence is described in many different ways. We find the Latin verbs trabattere, percutere, occidere, interficere, necare, excutere, perdere and extingere, Old English (of)slean and sacan, and Old Frisian lif af(of)nima, of liue wertha, bifiuchta, and onfiuchta. Phrases such as aborsum facere, occisus fuerit, extinguere partum suum or debilitata fuerit do not tell us how the violence was committed. Other phrases are equally uninformative, but do tell us that almost any kind of violence could have been used: per facto, per aliquam violentiam, per aliquam occasionem or vario modo de avorso. Occasionally the laws specify the violence, using words and phrases that imply fighting, hitting and beating, such as percutere, trabattere, quocum- (que) (h)ictu, ictu quolibet, Old English on cease (ceaste) gewerde, or Old Frisian onfiuchta (bern onefuchten inur tha benena burch), bifiuchta, blodelsa, and blodrunnend. The most vivid description of aggression is in the Third Merovingian Capitulary (III.104.4): in uentre aut in renis percusserit pugno aut calce. No other methods of abortion are mentioned explicitly, although Chindasvind’s law on abortion does suggest that other methods of intentional abortion besides potions were used, when it speaks of alio quocumque modo extinguere partum suum without telling us what methods he is referring to.

139 Cf. chapter 1, note 41. Part 2: Chapter 1 364

Table 1.5a: Methods of abortion: poisons, abortifacients

ROMAN LAW ARTICLE POISON, POISONER POTION ABORTIFACIENT Latin Pauli Sententiae PS 5.23.1 venenum PS 5.23.14 abortionis poculum dant poculum abortionis poculum dant Codex Theodosianus CTh 3.16.1 medicamentarius, -a (divorce) [supplying abortifacients?] Breviarium Alaraci (LRV) BA 3.16.1 medicamentarius, -a (divorce) [supplying abortifacients?] BA PS 5.25.1 venenum

BA PS 5.25.8 abortionis poculum dant poculum abortionis poculum dant

Breviarium, interpretatio BA 3.16.1 maleficus, -a (divorce) [supplying abortifacients?] Breviarium, epitomes BA 3.16.1 maleficus, -a; maleficium (divorce) [supplying abortifacients?] ROMAN LAW ARTICLE POISON, POISONER POTION ABORTIFACIENT

OLD GERMANIC LAW ARTICLE POISON, POISONER POTION ABORTIFACIENT Latin Visigothic law LV 6.2.2 veneficus, -a, venenatam potionem potio 140 LV 3.4.13 poisoning, bewitching husband LV 6.3.1 potionem ad avorsum potio potionem ad avorsum LV 6.3.7 potionem ad avorsum potio potionem ad avorsum Burgundian law (LB, LRB) no laws on poisoning ------LB 34.3 maleficium (divorce) [supplying abortifacients?] LRB 21.2 - LRB 21.3 veneficus, -a (divorce) [supplying abortifacients?] Ostrogothic law no laws on poisoning ETh 54 maleficus, -a (divorce) [supplying abortifacients?] Lombard law LLa-ER 139 uenenum ad bivendum dare ad bivendum LLa-ER 140 uenenum ad bivendum ad bivendum LLa-ER 141 uenenum ad bivendum dederit ad bivendum Salic law PLS 19.1 (LS 24.1) herbas dederit bibere, maleficiis fecerit dederit bibere PLS 19.2 (LS 24.2) maleficium fecerit (ficerit) PLS 19.4 (LS 24.3) maleficium fecerit, herbas dederit [bibere] ut infantes/m non habere Ripuarian law LRib 86.1 maleficium - venenum LRib 86.2 --- Alamannic law PLA, LA no laws on poisoning PLA 13.1 stria aut herbaria (terms of abuse) PLA 14.1-14.11 stria herbaria (herbcraft,witchcraft) Bavarian law LBai 4.22 potio mortifera potio LBai 8.18 potionem ut avorsum faceret potio potio ut avorsum faceret Chamavian law LCham no laws on poisoning Saxon law LSax no laws on poisoning Thuringian law LThur 52 veneficium (poisoning husband) no other laws on poisoning Early Frisian law LFri no laws on poisoning

Vernacular Anglo-Saxon law various laws no general laws on poisoning ------Late medieval Old Frisian law various laws no laws on poisoning ------OLD GERMANIC LAW ARTICLE POISON, POISONER POTION ABORTIFACIENTS

Cf. table 1.4b.

140 potionibus quibusdam vel maleficiorum factionibus, ‘some kind of potions or the machinations of poisoning or magic’ (LV 3.4.13). Part 2: Chapter 1 365

Table 1.5b: Methods of violent abortion

OLD GERMANIC LAW ARTICLE METHOD, CIRCUMSTANCES, TERMS Latin Visigothic law LV 6.3.2 (free woman) percutere quocumque hictu aut per aliquam occasionem abortare fecerit; partus excutiatur; debilitata fuerit; LV 6.3.3 (free woman) abortare conpulerit; per aliquam violentiam aut occasionem (…) partum excusserit; ex hoc debilitasse; LV 6.3.4 (ancilla) partum effuderit; aborsum fecerit; LV 6.3.5 (free women) partum excusserit LV 6.3.6 (ancilla) partitudinem leserit; abortare facerit LV 6.3.7 filios suos aut natos aut in utero necant; potionem ad avorsum acceperit, aut alio quocumque modo extinguere partum suum presumserit Burgundian law ------Ostrogothic law ------Lombard law LLa-ER 75 (freewoman) infans in utero matris suae ab aliquem occisus fuerit

LLa-ER 334 (ancilla) percutere, avortum fecirit

Salic law PLS 24.5 - 24.6; trabattere, occidere; PLS 41.19 - 41.20; LS 31.2 - 31.3 Mer.Cap. III.104.4 - 104.8 in uentre aut in renis percusserit pugno aut calce pecus mortuum excusserit; infans puella est qui excutetur Ripuarian law LRib 40.10 matrem cum partu interfecerit Alamannic law PLA 12, LA 70 per facto alterius infans mortuos natus fuerit per factum alterum infans natus m ortuus fuerit LA 88.1-88.2 aborsum [abortivum] fecerit epitome LA 34 aborsum fecerit Bavarian law LBai 8.19 (free woman) vario modo dicit de avorso; ictu quolibet avorsum fecerit; partus extinguitur; LBai 8.22 de debilitate avorsi; debilitata fuerit ut avorsum faceret LBai 8.23 (ancilla) de avorso ancillae LBai 8.20 avorsum fecerit Chamavian law LCham --- Saxon law LSax --- Thuringian law LThur --- Early Frisian law LFri ---

Vernacular Anglo-Saxon law Aelfred El.18 on cease eacniende wif gewerde Aelfred 9 be bearneacnum wife ofslægenum; wif mid bearne ofslea þonne þæt bearn in hire sie Late medieval Frisian law various binna there benena burch en lif of(af)nima, thet bern and thiu berthe ofliue werthe, thruch tha morth case there binna there benena burch eden is, morth(case) clagia, wrogia (wreia, biclagia) umbe ene unebinomat (binaemd) mord hiu (en frou) hire frucht urleren hebbe fon enre kase, 141 bernwendene (berdwendene)

OLD GERMANIC LAW ARTICLE METHOD, CIRCUMSTANCES, TERMS

Cf. table 1.4c.

141 Cf. Elsakkers 2004, passim. [article VI] Part 2: Chapter 1 366

Actors, accomplices and women’s business Except for the pregnant women, the actors in the Old Germanic laws on poisoning, abortifacients and violent abortion are not mentioned very often. The syntax of most of the legal texts is not gender specific, and the text usually implicitly - occasionally explicitly - indicates that the guilty party, accomplice, drug supplier or assaillant can be either a man or a woman (cf. table 1.5a). For instance, in Roman-based Old Germanic divorce law both husband and wife can accuse each other of being a poisoner (maleficus, veneficus; malefica, venefica), and the Ripuarian laws on poisoning and magic explicitly note that there are male and female poisoners (and/or magicians) - baro seu mulier, ‘either a man or a woman’. Apparently there were both men and women who were knowledgeable about herbal poisons and their effects. Poisoning was not perceived as an exclusively female crime, but there are Old Germanic laws that inform us that mixing poisons, concocting medicinal or magical herbal potions and abortifacients was women’s business. In Alamannic law use of the feminine word herbaria, which probably has the connotation ‘witch’, links women, herbs and magic.142 Visigothic and Thuringian law both indicate that women were capable of poisoning their husbands, thus also associating women and poisoning (LV 3.4.13; LThur 52).143 Women who were accused of being a malefica, venefica, stri(g)a, or herbaria - whether in divorce law, laws on magic, poisoning or name- calling - were probably knowledgeable about medical and medicinal remedies and recipes, drugs and herbs, and perhaps they were also involved in magic and magical (healing) rituals. Two of the three laws that forbid supplying abortifacients tell us that women were the ones who prepared abortifacient (contraceptive or other anti- fertility) drugs and provided other women with these poisonous herbal drinks (PLS 19.4, LS 24.3; LBai 8.18). The third law does not mention the gender of the accomplice (LV 6.3.1). These laws imply that women were the ones who knew the recipes for abortifacients, and that fertility management was usually women’s business. Only one Old Germanic law mentions men in connection with intentional abortion; Chindasvind’s vehement law on abortion suggests that husbands could be involved in intentional abortion, and that they may have agreed to the procedure, or forced or pressured their wives into having an abortion (LV 6.3.7). The articles on violent abortion do not generally mention the gender of the assaillant either, but their wording and their resemblance to the biblical law on abortion in Exodus (‘if men fight …’) indicates that the violence that caused the woman to miscarry was committed by men. Late medieval Old Frisian law and perhaps also Old English law are the only Old Germanic laws that mention the possibility of pregnant women also being involved in the violence (R1.IV.23, E1.IV.23). Late Old Frisian law contains the only reference to women who participated in the judicial proceedings. They tell us that female witnesses decided how old the fetus was at the time of its death.144 Old Germanic law contains a few important indications that intentional abortion was often considered to be women’s business: the fact that the pregnant woman receives the drug from another women in two out of three laws on abortifacients, the fact that, even though the association is a negative one, a number of laws explicitly associate women with poisoning, knowledge of herbs, remedies and recipes, and finally the female witnesses in late Old Frisian law.

142 See also: The Salic law on calling a free woman a stria or witch (PLS 64.2; Eckhardt 1962, pp. 230-231), and related articles with the masculine word hereburgius in PLS 64.1 and LS 96. 143 Alfred’s Old English translation of Exodus 22:18 in the introduction to his Domboc implies that women consorted with malefici, cf. Elsakkers 2010, forthcoming. [article VIII] 144 Cf. Elsakkers 2004, table on pp. 110-111. [article VI] Part 2: Chapter 1 367

Roman and Christian influences The Old Germanic laws on poisoning seem to be especially concerned with the pregnant woman’s health, and this betrays the influence of Roman law. Some of the laws on poisoning in the Old Germanic law codes were directly influenced by Roman law (LCSV). Others were more indirectly influenced. Old Germanic law seems to follow Roman law in punishing aiding and abetting, that is, preparing and supplying poisons. Abortifacients and other anti-fertility drugs were classed as poisons, and not without good reason. Many of these substances were dangerous and potentially lethal. As in Roman law, the drug supplier is punished severely, because she (or he) can be accused of being irresponsible. The Old Germanic laws on violent abortion all seem to be in some way influenced by the biblical law on abortion. The most obvious examples are Visigothic law, which incorporated a Latin translation of the Greek Sep- tuagint version of Exodus 21: 22-23 (probably through the Gothic version of Exodus), and Alfred’s Old English law which was derived from the Hebrew-based version in Jerome’s Vulgate. The Christian church’s influence on Germanic secular law is evident in Chindasvind’s law on abortion, which reads like a sermon, but it is especially noticeable in the terminology used to describe the stages of development of the fetus. Whereas the Greek Septuagint version of Exodus 21: 22-23 uses the Aristotelian distinction ‘formed’ - ‘unformed’ to differentiate between early term and late term abortion, some of the more Christianized Germanic laws use the typically Christian notion ‘ensoulment’ as an abortion criterion (Bavarian law, late Old Frisian law). The latter also seem to be concerned for the fate of the unbaptized fetus.

Status of the fetus Not all laws differentiate between early term and late term abortion, and not all laws consider (late term) abortion to be murder. The punishment for loss of the fetus in the various Old Germanic laws not only indicates that there were strict and lenient views on abortion, but also that there were different views on the status of the fetus. In some laws the death of the fetus is regarded as a serious injury to the mother, equivalent to an amputation, and in others it is considered to be murder, requiring payment of the wergeld. The Old Germanic laws seem to betray hesitation on the part of the various lawgivers regarding the status of the fetus. On the one hand the fetus is considered part of the mother’s body and on the other a separate human being. The question ‘was abortion regarded as murder in Old Germanic law’ can therefore not be answered with a simple ‘yes’ or ‘no’.

Reinterpretations? When interpreted literally the biblical law on abortion punishes violent and involuntary or accidental abortion. However, Exodus 21: 22-23 can also be reinterpreted as a condemnation of intentional or voluntary abortion. As early as the beginning of the first millennium the Jewish philosopher Philo of Alexandria (30 BC - AD 45) interpreted the biblical law on abortion as legislation against intentional abortion and infanticide. Augustine and many of the other Church Fathers followed Philo’s lead. In the Quaestiones Exodi Augustine gives an interpretation of Exodus 21: 22-23. He discusses violent abortion and argues that early term abortion cannot be regarded as murder because the fetus is not yet formed. Augustine’s Quaestio on Exodus 21: 22-23 can also be read as a passage on intentional abortion by the mother that implicitly suggests a loop-hole for early term abortion, because only late term abortion is regarded as murder. Interestingly, quotations of this passage, for instance in the Part 2: Chapter 1 368

early medieval penitentials, regularly leave out - and seem to ignore - the passage on violent abortion: ‘if men fight and strike a woman who is pregnant’.145 But is the ‘violence’ really ignored, or must we reinterpret the ‘violence’ mentioned in Exodus and Old Ger- manic law? Is it possible that methods of intentional abortion were considered forms of violent abortion? This does not seem implausible, if we consider the methods of abortion.146 The methods of abortion in early medieval period - usually a poisonous, sometimes lethally poisonous potion - were crude and dangerous - the laws on poisoning clearly indicate as much. If the woman survived, she might be severely injured or invalided. Implicitly, therefore, these articles might also prohibit abortion at the request of the mother. Administering an abortifacient to oneself would be doing violence to oneself - a form of self-injury or self-mutilation. A pregnant woman who commits abortion would be jeopardizing her own life. By the same token, other methods of intentional abortion - vaginal suppositories, vigorous exercise, operations or using some kind of instrument - could also be labelled as a form of violent abortion. I think this interpretation of the Old Germanic laws on violent abortion is possible, especially in situations where the Christian church’s influence was strong. However, the addition of the word nolendo in Lombard law indicates that interpretations can differ in time and place, and that we should beware of accepting or offering just one explanation of the Old Germanic laws on violent abortion.

A final question: did it happen? As we saw above, Old Germanic law has numerous provisions on poisoning and violent abortion or abortion by assault. Although it appears to be an argument from silence, the sheer number of Old Germanic laws that punish violent abortion, poisoning, and supplying or administering abortifacients indicates that these laws cannot simply have been a literary or legal convention. The Old Germanic laws show us that deliberate or intentional abortion, using abortifacient potions must have happened. The same goes for violent abortion. This is not to say that abortion happened on a regular basis or that the potions (always) worked.147 With the exception of Visigothic law, Old Germanic law - when interpreted literally - does not forbid or punish intentional abortion, it punishes endangering another person’s life, whether by administering or supplying a poisonous potion, or by committing violence towards a pregnant woman and her unborn child.

Ian Wood on barbarian law: ... it is by no means clear that this law is Germanic. Even if some clauses of the codes of the barbarian kingdoms can reasonably be seen as reflecting Germanic customs, many of them have a good claim to represent the provincial law of the Roman Empire. (Wood 1993, pp. 163-164)

145 See also: chapter 4, ‘suggestion for reinterpretation’. 146 See also below: chapter 4. 147 Cf. chapter 4. Part 2: Chapter 1 369

APPENDIX 1: ROMAN LAW, ABORTION AND THE FETUS

Roman law considered it the wife’s duty to bear children. If she ignored or sabotaged her husband’s right to progeny and deprived him of children, she could be sent into (temporary) exile (D.47.11.4; D.48.8.8; D.48.19.39).148 Besides infringing upon the rights of the father, abortion was considered to be a bad example. The third-century Roman jurists Marcianus, Ulpian and Tryphoninus comment on rescripts on abortion enacted by the emperors Septimus Severus and Antoninus Caracalla (late second - early third century): Justinianus, Digesta D.47.11.4. Marcianus libro primo regularum. Diuus Seuerus et Antoninus (Caracalla) rescripserunt eam, quae data opera abegit, a praeside in temporale exilium dandam: indignum enim uideri potest impune eam maritum liberis 149 fraudasse. Justinianus, Digesta D.48.8.8. Ulpianus libro trigensimo tertio ad edictum. Si mulierem uisceribus suis uim intulisse, quo partum ab- igeret, constiterit, eam in exilium praeses prouinciae exiget.150 Justinianus, Digesta D.48.19.39. Tryphoninus libro decimo disputationum. Cicero in oratione pro cluentio habito scripsit milesiam quandam mulierem, cum esset in asia, quod ab heredibus secundis accepta pecunia partum sibi medicamentis ipsa abegisset, rei capitalis esse damnatam. Sed et si qua uisceribus suis post diuortium, quod praegnas fuit, uim intulerit, ne iam inimico marito filium procrearet, ut temporali exilio coerceatur, ab optimis imperatoribus nostris rescriptum est.151

Motives Not many motives for abortion are mentioned in Roman law. D.48.19.39 speaks of hatred for the (ex-)husband. In her book Roman Marriage Susan Treggiari refers to Ovid, who tells us that that some women abort because they “wanted to avoid damage to their figures”.152

Methods The methods of abortion mentioned in Roman law are ‘poisonous potions’ (D.48.19.38.5) and ‘violence’ done to herself by the pregnant woman (D.48.8.8; D.48.19.39).153 Violence can refer to almost any method of abortion, including abortifacient potions, because all methods were in some sense ‘violent’.154 Being a medicamentaria, that is, being involved in poisoning or magic, was grounds for divorce in Roman law. The word

148 The articles quoted in the appendix are all from Justinian’s Digest, a compendium of older Roman law and legal com- mentaries, compiled at the instigation of the Byzantine emperor Justinian in the sixth century. On Roman law, abortion and the status of the fetus, see, for instance: Huser 1942, pp. 8-11, Gorman 1982, pp. 24-32, Noonan 1986, pp. 20-29, Gardner 1986, pp. 158-159, Treggiari 1991, pp. 406-407, Grubbs 1995, p. 96. 149 Http://webu2.upmf-grenoble.fr/Haiti/Cours/Ak/ (last accessed January 23, 2010); Justinianus, Digesta, ‘D.47.11.4. Marcian, Rules, Book 1: The deified Severus and Antoninus wrote in a rescript that she who intentionally aborted ought to be sent into temporary exile by the governor. For it can appear shameful for her to have defrauded her husband of children with impunity’ (Grubbs 2002, p. 202). See also: Kapparis 2002, p. 182 and Mommsen, Krüger &Watson 1985, vol. 4, pp. 784a-784b. 150 Http://webu2.upmf-grenoble.fr/Haiti/Cours/Ak/ (last accessed January 23, 2010); Justinianus, Digesta, ‘D.48.8.8. Ulpian, Edict, book 33: If is proved that a woman has done violence to her womb to bring about an abortion, the provincial governor shall send her into exile’ (Mommsen, Krüger &Watson 1985, vol. 4, pp. 820a-820b; Kapparis 2002, p. 182). 151 Http://webu2.upmf-grenoble.fr/Haiti/Cours/Ak/ (last accessed January 23, 2010); Justinianus, Digesta, ‘D.48.19.39. Tryphoninus, Disputes, book 10, Cicero wrote in the speech Pro Cluentio Habito, that when he was in Asia a Milesian woman was condemned to death because, after taking money from the substituted heirs, she committed abortion herself by means of drugs. But also if anyone, because she was pregnant, applied violence to her own womb after a divorce, so that she would not bear a child to her estranged husband, it has been stated in a rescript by our best of emperors that she is to be punished by temporary exile’ (translation based on Mommsen, Krüger &Watson 1985, vol. 4, pp. 854a-854b; Kapparis 2002, p. 182; Grubbs 2002, p. 202). See also: Grubbs 2002, p. 202 and Gardner 1986, p. 159 and note 53. 152 Treggiari refers to the poem Nux 23-24 and to Amores 2.14.7, cf. Treggiari 1991, p. 406 plus note 39. See also: Hopkins 1983, p. 94, and chapter 4, ‘Methods of abortion; preservation of the woman’s beauty’ and ‘Methods of abortion; surgical and other invasive techniques’. 153 Cf. chapter 1, ‘Roman heritage’. 154 See also: chapter 4, ‘Methods of abortion’. Part 2: Chapter 1 370

155 medicamentaria might include supplying or taking abortifacients. Justinianus, Digesta D.48.19.38.5. Paulus libro quinto sententiarum. Qui abortionis aut amatorium poculum dant, etsi dolo non faciant, tamen quia mali exempli res est, humiliores in metallum, honestiores in insulam amissa parte bonorum relegantur. Quod si eo mulier aut homo perierit, summo supplicio adficiuntur.156

Dangers D.48.8.3.1 - D.48.8.3.3 quote the Roman jurist Marcianus on the prohibition of poisoning in the Lex Cornelis de Sicariis et Veneficis. D.48.8.3.2 suggests that contraceptives and/or fertility drugs could be dangerous and potentially lethal, and D.48.8.3 includes a list of poisonous ingredients used in some cosmetics. Justinianus, Digesta D. 48.8.3. Marcianus libro 14 institutionum. pr. Eiusdem legis Corneliae de sicariis et veneficis capite quinto, qui venenum necandi hominis causa fecerit vel vendiderit vel habuerit, plectitur. Justinianus, Digesta D. 48.8.3.1. Eiusdem legis poena adficitur, qui in publicum mala medicamenta vendiderit vel hominis necandi causa 157 habuerit. Justinianus, Digesta D. 48.8.3.2. Adiectio autem ista ‘veneni mali’ ostendit esse quaedam et non mala venena. Ergo nomen medium est et tam id, quod ad sanandum, quam id, quod ad occidendum paratum est, continet, sed et id quod amatorium appellatur: sed hoc solum notatur in ea lege, quod hominis necandi causa habet. Sed ex senatus consulto relegari iussa est ea, quae non quidem malo animo, sed malo exemplo medicamentum ad conceptionem dedit, ex quo ea quae acceperat 158 decesserit. Justinianus, Digesta D. 48.8.3.3. Alio senatus consulto effectum est, ut pigmentarii, si cui temere cicutam salamandram aconitum pituocampas aut bubrostim mandragoram et id, quod lustramenti causa dederit cantharidas, poena teneantur huius legis.159

Nux Another legal text informs us that some of the medicines used by midwives could also be dangerous, and that a midwife could expect a civil suit under the Lex Aquila, if something went wrong. Justinianus, Digesta D.9.2.9. Ulpianus libro 18 ad edictum. pr. Item si obstetrix medicamentum dederit et inde mulier perierit, Labeo distinguit, ut, si quidem suis manibus supposuit, videatur occidisse: sin vero dedit, ut sibi mulier offerret, in factum actionem dandam, quae sententia vera est: magis enim causam mortis praestitit quam occidit. D.9.2.9. 1. Si quis per vim vel suasum medicamentum alicui infundit vel ore vel clystere vel si eum unxit malo veneno, lege Aquilia eum teneri, quemadmodum obstetrix supponens tenetur.160

155 Cf. chapter 1, ‘Burgundian and Ostrogothic law on abortion’. 156 Http://webu2.upmf-grenoble.fr/Haiti/Cours/Ak/ (last accessed January 23, 2010); Mommsen, Krüger &Watson 1985, vol. 4, pp. 853a-853b). For a discussion and translation, cf. chapter 1, ‘Roman heritage’, and chapter 1, note 8. 157 Http://webu2.upmf-grenoble.fr/Haiti/Cours/Ak/ (last accessed January 23, 2010); Justinianus, Digesta, ‘D.48.8.3.1. Marcian, Institutes, book 14: Under chapter five of the same Lex Cornelia on murderers and poisoners, someone is punished who makes, sells, or possesses a drug for the purpose of homicide. The person who sells baneful medicines to the public or possesses them for the purpose of homicide is liable to the penalty of the same statute’ (Mommsen, Krüger &Watson 1985, vol. 4, pp. 819a-819b). 158 Http://webu2.upmf-grenoble.fr/Haiti/Cours/Ak/ (last accessed January 23, 2010); Justinianus, Digesta, ‘D. 48.8.3.2. The addition of the phrase ‘baneful drugs’ indicates that there are certain drugs which are not baneful. The term is therefore neutral, covering as much a drug prepared for the purposes of healing as one for the purpose of killing, as also that which is called an aphrodisiac. However, only that [kind of drug] is mentioned in the statute which is possessed for the purpose of homicide. It is, however, ordered by senatus consultum that a woman who, not admittedly maliciously but inadvisedly, has administered a fertility drug [or contraceptive] from which the recipient dies shall be relegated’ (Mommsen, Krüger &Watson 1985, vol. 4, pp. 819a-819b). Noonan argues that ad conceptionem can also be interpreted as a ‘medicine for conception’, just as aspirin is a medicine ‘for a headache’, cf. Noonan 1986, pp. 26-27. 159 Http://webu2.upmf-grenoble.fr/Haiti/Cours/Ak/ (last accessed January 23, 2010); Justinianus, Digesta, ‘D. 48.8.3.3. It is laid down by another senatus consultum that dealers in cosmetics are liable to the penalty of this law if they recklessly hand over to anyone hemlock, salamander, monkshood, pinegrubs, or a venomous beetle, mandragora, or, except for the purpose of purification, Spanish fly’ (Mommsen, Krüger &Watson 1985, vol. 4, pp. 819a-819b). On purification, see also: chapter 1, note 99. 160 Http://webu2.upmf-grenoble.fr/Haiti/Cours/Ak/ (last accessed January 23, 2010); Justinianus, Digesta, ‘D.9.2.9. Ulpi- anus, On the Edict, Book XVIII. If a midwife gives a drug from which the woman dies, Labeo makes this distinction: If she administers it with her own hands it would appear that she killed, but if she gave it to the woman for her to take it herself an actio in factum must be granted. This opinion is correct; for she provided a cause of death rather than killed. D.9.2.9.1. If someone administers a drug to anyone by force or persuasion, either orally or by injection, or rubs him with a poisonous sub- Part 2: Chapter 1 371

It was apparently common knowledge that substances used as medicines and cosmetics could be poisonous, including love potions and abortifacients (D.48.19.38.5). Supplying or administering them could be punished as (attempted) murder.

Status of the Fetus In Roman law the fetus is not regarded as a person (homo), cf. D.35.2.9.1.161 The fetus is considered part of the maternal viscera (D.25.4.1.1). Roman laws that are concerned with abortion were issued to protect the rights of the husband and the family, not the rights of the fetus, or as Judith Grubbs says: “The woman was not punished for having procured an abortion, which was not per se against the law. (…) it was the pre- rogative of the paterfamilias of the yet unborn child to determine whether it would be reared and acknowl- edged”; punishment was for infringement upon the rights of the paterfamilias.162 Justinianus, Digesta D.35.2.9.1. Papinianus libro nono decimo quaestionum. Circa uentrem ancillae nulla temporis admissa distinctio est nec immerito, quia partus nondum editus homo non recte fuisse dicitur.163 Justinianus, Digesta D.25.4.1.1. Ulpianus libro uicesimo quarto ad edictum. Ex hoc rescripto euidentissime apparet senatus consulta de liberis agnoscendis locum non habuisse, si mulier dissimularet se praegnatem uel etiam negaret, nec immerito: partus enim antequam edatur, mulieris portio est uel uiscerum. Post editum plane partum a muliere iam potest maritus iure suo filium per interdictum desiderare aut exhiberi sibi aut ducere permitti. Extra ordinem igitur princeps in causa necessaria subuenit).164

165 The Digest also contains a number of articles on the inheritance of unborn children.

stance, he is liable under the lex Aquila, just as the midwife who administers a drug is liable (translation based on Mommsen, Krüger &Watson 1985, vol. 1, pp. 279-280a- 279-280b and http://www.constitution.org/sps/sps03_j2-09.htm; last accessed January 23, 2010). 161 Huser explains the status of the fetus in Roman law as follows: “The fact that no concern was evinced about the intrinsic morality of abortion or about the rights of the unborn child to life is not difficult to understand. It was an assumed legal principle in Roman law that the unborn was not a human being, a principle which betrayed the influence of the Stoic theory that the human soul was infused only at the time of birth” (Huser 1942, p. 10). Cf. also: Mommsen 1899 [1955], p. 636, note 5: “Als Mensch wird dasselbe [fetus] nicht angesehen.” 162 Grubbs 2002, p. 202. 163 Http://webu2.upmf-grenoble.fr/Haiti/Cours/Ak/) (last accessed January 23, 2010); Justinianus, Digesta, ‘D.35.2.9.1. Where a slave-woman is pregnant, no distinctions of time are taken and rightly; issue yet unborn cannot be rightly said to be a homo (‘human being’)’ (Mommsen, Krüger &Watson 1985, vol. 3, pp. 203a-203b; slightly emended translation). 164 Http://webu2.upmf-grenoble.fr/Haiti/Cours/Ak/ (last accessed January 23, 2010); Justinianus, Digesta, ‘D.25.4.1.1. It is quite clear from this rescript that the senatus consulta on the recognition of children will not apply if the woman pretended she was not pregnant or even denied it. This is not unreasonable, since the child is part of the woman or her insides before it is born. After the child is born, the husband can legally demand the boy from the woman by using an interdict, or have the child shown to him or be allowed to remove him. Thus, the emperor provides a procedure extra ordinem here where necessary’ (Mommsen, Krüger &Watson 1985, vol. 2, pp. 740a-740b). The preceding article, D.25.4.1.pr., states that, if a (di- vorced) woman denied that she was pregnant, ‘three midwives of proven skill and trustworthiness’ were to inspect her in order to determine whether she was pregnant or not, cf. Grubbs 2002, p. 201. 165 Cf. Grubbs 2002, pp. 264ff. Part 2: Chapter 1 372